UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


,  "PWUSHERS.  \£d;nburgh 
DEALERS  AM)  \    SCOTbwf) 


ft|: 


A  DIGEST 


OF   THE 


LAW  OF  EVIDENCE 


JAMES  FITZJAMES  STEPHEN,  Q.  0. 


SECOND  EDITION— REPRINT 


ST.  LOUIS 
P.  H.  THOMAS  AND  COMPANY 

1879 


^v 


INTRODUCTION. 


In  the  years  1870-1871  I  drew  what  afterwards  became 
the  Indian  Evidence  Act  (Act  1  of  1872).  This  Act  began 
by  repealing  (with  a  few  exceptions)  the  whole  of  the  Law 
of  Evidence  then  in  force  in  India,  and  proceeded  to  re- 
enact  it  in  the  form  of  a  code  of  167  sections,  which  has  been 
in  operation  in  India  since  Sept.  1872.  I  am  informed 
that  it  is  generally  understood,  and  has  required  little 
judicial  commentary  or  exposition. 

In  the  autumn  of  1872  Lord  Coleridge  (then  Attorney- 
General)  employed  me  to  draw  a  similar  code  for  England. 
I  did  so  in  the  course  of  the  winter,  and  we  settled  it  in 
frequent  consultations.  It  was  ready  to  be  introduced 
early  in  the  Session  of  1873.  Lord  Coleridge  made  var- 
ious attempts  to  bring  it  forward,  but  he  could  not  succeed 
till  the  very  last  day  of  the  Session.  He  said  a  few  words 
on  the  subject  on  the  5th  August,  1873,  just  before  Parlia- 
ment was  prorogued.  The  Bill  was  thus  never  made 
public,  though  I  believe  it  was  ordered  to  be  printed. 


IV  INTRODUCTION. 

It  was  drawn  on  the  model  of  the  Indian  Evidence  Act, 
and  contained  a  complete  system  of  law  upon  the  subject 
of  Evidence- 
In  the  latter  part  of  1873  Lord  Coleridge  was  raised  to 
his  present  position,  and  the  Bill  has  not  been  proceeded 
with  by  his  successors. 

The  present  work  is  founded  upon  this  Bill,  though  it 
differs  from  it  in  various  respects.  Lord  Coleridge's  Bill 
proposed  a  variety  of  amendments  of  the  existing  law. 
These  are  omitted  in  the  present  work,  which  is  intended  to 
represent  the  existing  law  exactly  as  it  stands.  The  Bill,  of 
course,  was  in  the  ordinary  form  of  an  Act  of  Parlirnent.  In 
the  book  I  have  allowed  myself  more  freedom  of  expression, 
though  I  have  spared  no  pains  to  make  my  statements  as 
precise  and  complete  in  substance  as  if  they  were  intended 
to  be  submitted  to  the  Legislature. 

The  Bill  contained  a  certain  number  of  illustrations, 
and  Lord  Coleridge's  personal  opinion  was  in  their  favour, 
though  he  had  doubts  as  to  the  possibility  of  making  them 
acceptable  to  Parliament.  In  the  book  I  have  much  in- 
creased the  number  of  the  illustrations,  and  I  have,  in 
nearly  every  instance,  taken  cases  actually  decided  by  the 
Courts  for  the  purpose.  In  a  few  instances  I  have  in- 
vented illustrations  to  suit  my  own  purpose,  but  I  have 
done  so  only  in  cases  in  which  the  practice  of  the  Courts  is 
too  well  ascertained  to  be  questioned.  I  think  that  illus- 
trations might  be  used  with  advantage  in  Acts  of  Parlia- 
ment, though  I  am  aware  that  others  take  a  different  view; 


INTRODUCTION.  V 

but,  be  this  as  it  may,  their  use  in  a  treatise  cannot  be 
disputed,  as  they  not  only  bring  into  clear  light  the 
meaning  of  abstract  generalities,  but  are,  in  many  cases, 
themselves  the  authorities  from  which  rules  and  principles 
must  be  deduced. 

These  explanations  show,  amongst  other  things,  that  I 
cannot  honestly  claim  Lord  Coleridge's  authority  for  more 
than  a  general  approval  of  this  work.  An  Act  of  Parlia- 
ment which  makes  the  law,  and  a  treatise  which  states  it, 
differ  widely,  and  my  work  may  of  course  be  open  to  num- 
erous objections  which  would  have  been  easily  answered 
if  they  had  been  urged  against  Lord  Coleridge's  Bill. 

The  novelty  of  the  form  and  objects  of  the  work  may 
justify  some  explanations  respecting  it.  In  December 
last,  at  the  request  of  the  Council  of  Legal  Education,  I 
undertook  the  duties  of  Professor  of  Common  Law,  at  the 
Inns  of  Court,  and  I  chose  the  Law  of  Evidence  for  the 
Bubject  of  my  first  course  of  lectures.  It  appeared  to  me 
that  the  draft  Bill  which  I  had  prepared  for  Lord  Coleridge 
supplied  the  materials  for  such  a  statement  of  the  law  as 
would  enable  students  to  obtain  a  precise  and  systematic 
acquaintance  with  it  in  a  moderate  space  of  time,  and  with- 
out a  degree  of  labour  disproportionate  to  its  importance 
in  relation  to  other  branches  of  the  law.  No  such  work, 
so  far  as  I  know,  exists ;  for  all  the  existing  books  on  the 
Law  of  Evidence  are  written  on  the  usual  model  of  Eng- 
lish law  books,  which,  as  a  general  rule,  aim  at  being  col- 
lections more  or  less  complete  of  all  the  authorities  upon 


Vi  INTRODUCTION. 

a  given  subject,  to  which  a  judge  would  listen  in  an  argu- 
ment in  court.  Such  works  often  become,  sometimes  under 
the  hands  of  successive  editors,  the  repositories  of  an  extra- 
ordinary anount  of  research,  but  they  seem  to  me  to  have 
the  effect  of  making  the  attainment  by  direct  study  of  a 
real  knowledge  of  the  law,  or  of  any  branch  of  it  as  a  whole, 
almost  impossible.  The  enormous  mass  of  detail  and  illus- 
trations which  they  contain,  and  the  habit  into  which  their 
writers  naturally  fall,  of  introducing  into  them  everything 
which  has  any  sort  of  connection,  however  remote,  with  the 
main  subject,  make  these  books  useless  for  purposes  of 
study,  though  they  may  increase  their  utility  as  works  of 
reference.  The  last  edition  of  Mr  Taylor's  work  on  Evi- 
dence contains  1797  royal  8vo  pages.  To  judge  from  the 
table  of  cases,  it  must  refer  to  about  9000  judicial  decisions, 
and  it  cites  nearly  750  Acts  of  Parliament.  The  last  edition 
of  'Roscoe's  Digest  of  the  Law  of  Evidence  on  the  trial  of 
Actions  at  Nisi  Prius,'  contains  1556  closely-printed  pages. 
The  table  of  cases  cited  consists  of  77  pages,  one  of  which 
contains  the  names  of  152  cases,  whieh  would  give  a  total 
of  11,704  cases  referred  to.  There  is,  besides,  a  list  of 
references  to  statutes  which  fills  21  pages  more.  'Best's 
Principles  of  the  Law  of  Evidence,'  which  disclaims  the 
intention  of  adding  to  the  number  of  practical  works  on 
the  subject,  and  is  said  to  be  intended  to  examine  the  prin- 
ciples on  which  the  rules  of  evidence  are  founded,  contains 
908  pages  and  refers  to  about  1400  cases.  When  we  re- 
member that  the  Law  of  Evidence  forms  only  one  branch 


INTRODUCTION.  vii 

of  the  Law  of  Procedure,  and  that  the  Substantive  Law 
which  regulates  rights  and  duties  ought  to  be  treated  inde- 
pendently of  it,  it  becomes  obvious  that  if  a  lawyer  is  to 
have  anything  better  than  a  familiarity  with  indexes,  he 
must  gain  his  knowledge  in  some  other  way  than  from 
existing  books  on  the  subject.  No  doubt  such  knowledge 
is  to  be  gained.  Experience  gives  by  degrees,  in  favour- 
able cases,  a  comprehensive  acquaintance  with  the  princi- 
ples of  the  law  with  which  a  practitioner  is  conversant. 
He  gets  to  see  that  it  is  shorter  and  simpler  than  it  looks, 
and  to  understand  that  the  innumerable  cases  which  at 
first  sight  appear  to  constitute  the  law,  are  really  no  more 
than  illustrations  of  a  comparatively  small  number  of  prin- 
ciples ;  but  those  who  have  gained  knowledge  of  this  kind 
have  usually  no  opportunity  to  impart  it  to  others.  More- 
over, they  acquire  it  very  slowly,  and  with  needless  labor 
themselves,  and  though  knowledge  so  acquired  is  often 
specially  vivid  and  well  remembered,  it  is  often  fragment- 
ary, and  the  possession  of  it  not  unfrequently  renders  those 
who  have  it  sceptical  as  to  the  possibility,  and  even  as  to 
the  expediency  of  producing  anything  more  systematic  and 
complete. 

Circumstances  already  mentioned  have  led  me  to  put 
into  a  systematic  form  such  knowledge  of  the  subject  as 
I  had  acquired,  and  my  connection  with  the  scheme  of 
education,  established  by  the  Inns  of  Court,  seems  to 
impose  upon  me  the  duty  of  doing  what  I  can  to  assist  in 
their  studies  those  who  attend  my  lectures.    This  work  is 


Vlll  INTRODUCTION. 

the  result  The  labor  bestowed  upon  it  has,  I  may  say, 
been  in  an  inverse  ratio  to  its  size. 

My  object  in  it  has  been  to  separate  the  subject  of 
evidence  from  other  branches  of  the  law  with  which  it  has 
commonly  been  mixed  up ;  to  reduce  it  into  a  compact 
systematic  form,  distributed  according  to  the  natural  divi- 
sion of  the  subject-matter;  and  to  compress  into  precise 
definite  rules,  illustrated,  when  necessary,  by  examples, 
such  cases  and  statutes  as  properly  relate  to  the  subject 
matter  so  limited  and  arranged.  I  have  attempted,  in 
short,  to  make  a  digest  of  the  law,  which,  if  it  were 
thought  desirable,  might  be  used  in  the  preparation  of  a 
code,  and  which,  at  all  events,  will,  I  hope,  be  useful,  not 
only  to  professional  students,  but  to  every  one  who  takes 
an  intelligent  interest  in  a  part  of  the  law  of  his  country, 
bearing  directly  on  every  kind  of  investigation  into  ques- 
tions of  fact,  as  well  as  on  every  branch  of  litigation. 

The  Law  of  Evidence  is  composed  of  two  elements, 
namely,  first,  an  enormous  number  of  cases,  almost  all  of 
which  have  been  decided  in  the  course  of  the  last  100 
or  150  years,  and  which  have  already  been  collected  and 
classified  in  various  ways  by  a  succession  of  text  writers, 
the  most  recent  of  whom  I  have  already  named;  secondly, 
a  comparatively  small  number  of  Acts  of  Parliament 
which  have  been  passed  in  the  course  of  the  last  thirty  or 
forty  years,  and  have  effected  a  highly  beneficial  revolu- 
tion in  the  law  as  it  was  when  it  attracted  the  denuncia- 
tions of  Buntham.     Writers  on  the  Law  of  Evidence  usu- 


INTRODUCTION.  IX 

ally  refer  to  statutes  by  the  hundred,  but  the  Acts  of  Parlia- 
ment which  really  relate  to  the  subject  are  but  few.  A 
detailed  account  of  this  matter  will  be  found  at  the  end  of 
the  volume,  in  Note  XLTX. 

The  arrangement  of  the  book  is  the  san  e  as  that  of  the 
Indian  Evidence  Act,  and  is  based  upon  the  distinction 
between  relevancy  and  proof,  that  is,  between  the  question 
What  facts  may  be  proved  ?  and  the  question  How  must 
a  fact  be  proved  assuming  that  proof  of  it  may  be  given  ? 
The  neglect  of  this  distinction,  which  is  concealed  b}"  the 
ambiguity  of  the  word  '  evidence '  (a  word  which  sometimes 
means  testimony  and  at  other  times  relevancy),  has  thrown 
the  whole  subject  into  confusion,  and  has  made  what  wa& 
really  plain  enough  appear  almost  incomprehensible. 

In  my  'Introduction  to  the  Indian  Evidence  Act,'  pub- 
lished in  1872,  and  in  speeches  made  in  the  Indian  Legis- 
lative Council,  I  entered  fully  upon  this  matter,  and  I  need 
not  return  to  it  here.  I  may.  however,  give  a  short  outline 
of  the  contents  of  this  work,  in  order  to  show  the  nature  of 
the  solution  of  the  problem  stated  above  at  which  I  have 
arrived. 

All  law  may  be  divided  into  Substantive  Law,  by  which 
rights,  duties,  and  liabilities  are  defined,  and  the  Law  of 
Procedure,  by  which  the  Substantive  Law  is  applied  to 
particular  cases. 

The  Law  of  Evidence  is  that  part  of  the  Law  of  Proced- 
ure which,  with  a  view  to  ascertain  individual  rights  and 
liabilities  in  particular  cases,  decides: 


I  INTRODUCTION. 

L  What  facts  may,  and  what  may  not  be  proved  in  such 
cases ; 

II.  What  sort  of  evidence  must  be  given  of  a  fact  which 
may  be  proved ; 

III.  By  whom  and  in  what  manner  the  evidence  must 
be  produced  by  which  any  fact  is  to  be  proved. 

I.  The  facts  which  may  be  proved  are  facts  in  issue,  or 
facts  relevant  to  the  issue. 

Facts  in  issue  are  those  facts  upon  the  existence  of 
which  the  right  or  liability  to  be  ascertained  in  the  pro- 
ceeding depends. 

Facts  relevant  to  the  issue  are  facts  from  the  existence 
of  which  inferences  as  to  the  existence  of  the  facts  in  issue 
may  be  drawn. 

A  fact  is  relevant  to  another  fact  when  the  existence  of 
the  one  can  be  shown  to  be  the  cause  or  one  of  the  causes, 
or  the  effect  or  one  of  the  effects,  of  the  existence  of  the 
other,  or  when  the  existence  of  the  one,  either  alone  or 
together  with  other  facts,  renders  the  existence  of  the 
other  highly  probable,  or  improbable,  according  to  the 
common  course  of  events. 

Four  classes  of  facts,  which  in  common  life  would  usually 
be  regarded  as  falling  within  this  definition  of  relevancy, 
are  excluded  from  it  by  the  Law  of  Evidence  except  in 
certain  cases : 

1.  Facts  similar  to,  but  not  specifically  connected  with, 
each  other,     (lies  inter  alios  actce.) 


INTRODUCTION.  XI 

2.  The  fact  that  a  person  not  called  as  a  witness  has 
asserted  the  existence  of  any  fact.     [Hearsay.) 

3.  The  fact  that  any  person  is  of  opinion  that  a  fact 
exists.     [Opinion.) 

4.  The  fact  that  a  person's  character  is  such  as  to 
render  conduct  imputed  to  him  probable  or  improbable. 
(Character.) 

To  each  of  these  four  exclusive  rules  there  are,  however, 
important  exceptions,  which  are  defined  by  the  Law  of 
Evidence. 

IL  As  to  the  manner  in  which  a  fact  in  issue  or  relevant 
fact  must  be  proved. 

Some  facts  need  not  be  proved  at  all,  because  the  Court 
will  take  judicial  notice  of  them,  if  they  are  relevant  to 
the  issue. 

Every  fact  which  requires  proof  must  be  proved  either 
by  oral  or  by  documentary  evidence. 

Every  fact,  except  (speaking  generally)  the  contents  of 
a  document,  must  be  proved  bv  oral  evidence.  Oral  evi- 
dence must  in  every  case  be  direct,  that  is  to  say.  it  must 
consist  of  an  assertion  by  the  person  who  gives  it  that  he 
directly  perceived  the  fact  to  the  existence  of  which  he 
testifies. 

Documentary  evidence  is  either  primary  or  secondary. 
Primary  evidence  is  the  document  itself  produced  in  court 
for  inspection. 

Secondary  evidence  varies  according  to  the  nature  of  the 
document.     In  the  case  of  private  documents,  a  copy  of 


Xll  INTRODUCTION. 

the  document,  or  an  oral  account  of  its  contents,  is  sec- 
ondary evidence.  In  the  case  of  some  public  documents, 
examined  or  certified  copies,  or  exemplifications,  must  or 
may  be  produced  in  the  absence  of  the  documents  them- 
selves. 

Whenever  any  public  or  private  transaction  has  been 
reduced  to  a  documentary  form,  the  document  in  which 
it  is  recorded  becomes  conclusive  evidence  of  that  trans- 
action, and  its  contents  cannot,  except  in  certain  cases  ex- 
pressly defined,  be  varied  by  oral  evidence,  though 
secondary  evidence  may  be  given  of  the  contents  of  the 
document. 

ILL  As  to  the  person  by  whom,  and  the  manner  in 
which  the  proof  of  a  particular  fact  must  be  made. 

When  a  fact  is  to  be  proved,  evidence  must  be  given  of 
it  by  the  person  upon  whom  the  burden  of  proving  it  is 
imposed,  either  by  the  nature  of  the  issue  or  by  any  legal 
presumption,  unless  the  fact  is  one  which  the  party  is 
estopped  from  proving  by  his  own  representations,  or  by 
his  conduct,  or  by  his  relation  to  the  opposite  party. 

The  witnesses  by  whom  a  fact  is  to  be  proved  must  be 
competent.  With  very  few  exceptions,  every  one  is  now 
a  competent  witness  in  all  cases.  Competent  witnesses, 
however,  are  not  in  all  cases  compelled  or  even  permitted 
to  testify. 

The  evidence  must  be  given  upon  oath,  or,  in  certain 
excepted  cases,  without  oath.  The  witnesses  must  be 
first  examined  in  chief,  then  cross-examined,    and  then 


INTRODUCTION.  Xlll 

re-examined.  Their  credit  may  be  tested  in  certain  ways, 
and  the  answers  which  they  give  to  questions  affecting 
their  credit  may  be  contradicted  in  certain  cases  and  not 
in  other-. 

This  brief  statement  will  show  what  I  regard  as  consti- 
tuting the  Law  of  Evidence  properly  so  called.  My  view 
of  it  excludes  many  things  which  are  often  regarded  as 
forming  part  of  it.  The  principal  subjects  thus  omitted 
are  as  follows: — 

I  regard  the  question,  "What  may  be  proved  under  par- 
ticular issues?  (which  many  writers  treat  as  part  of  the 
Law  of  Evidence)  as  belonging  partly  to  the  subject  of 
Pleading,  and  partly  to  each  of  the  different  branches  into 
which  the  Substantive  Law  may  be  divided. 

A  is  indicted  for  murder,  and  pleads  Not  Guilty.  This 
plea  puts  in  issue,  amongst  other  things,  the  presence  of 
any  st;ite  of  mind  describable  as  malice  aforethought, 
and  all  matters  of  justification  or  extenuation. 

Starkie  and  Roscoe  treat  these  subjects  at  full  length,  as 
supplying  answers  to  the  question,  TVriat  can  be  proved 
under  an  issue  of  Not  Guilty  on  an  indictment  for  murder? 
Mr.  Taylor  does  not  go  so  far  as  this ;  but  a  great  part  of 
his  book  is  based  upon  a  similar  principle  of  classification. 
Thus  chapters  i.  and  ii.  of  Part  II.  are  rather  a  treatise  on 
pleading  than  a  treatise  on  evidence. 

Again.  I  have  dealt  very  shortly  with  the  whole  subject 
of  presumptions.  My  reason  is  that  they  also  appear  to 
me  to  belong  to  different  branches  of  the  Substantive  Law, 


XIV  INTRODUCTION. 

and  to  he  unintelligible,  except  in  connection  with  them. 
Take,  for  instance,  the  presumption  that  every  one  knows 
the  law.  The  real  meaning  of  this  is  that,  speaking  gen- 
erally, ignorance  of  the  law  is  not  taken  as  an  excuse  for 
breaking  it.  This  rule  cannot  be  properly  appreciated  if 
it  is  treated  as  a  part  of  the  Law  of  Evidence.  It  belongs 
to  the  Criminal  Law.  In  the  same  way  numerous  pre- 
sumptions as  to  the  rights  of  property  (in  particular,  ease- 
ments and  incorporeal  hereditaments)  belong  not  to  the 
Law  of  Evidence,  but  to  the  Law  of  Real  Property.  The 
only  presumptions  which,  in  my  opinion,  ought  to  find  a 
place  in  the  Law  of  Evidence  are  those  which  relate  to 
facts  merely  as  facts,  and  apart  from  the  particular  rights 
which  they  constitute.  Thus  the  rule,  that  a  man  not 
heard  of  for  seven  years  is  presumed  to  be  dead,  might  be 
equally  applicable  to  a  dispute  as  to  the  validity  of  a  mar 
riage,  an  action  of  ejectment  by  a  reversioner  against  a 
tenant  pur  autre  vie,  the  admissibility  of  a  declaration 
against  interest,  and  many  other  subjects.  After  careful 
consideration,  I  have  put  a  few  presumptions  of  this  kind 
into  a  chapter  on  the  subject,  and  have  passed  over  the 
rest  as  belonging  to  different  branches  of  the  Substantive 
Law. 

Practice,  again,  appears  to  me  to  differ  in  kind  from  the 
Law  of  Evidence.  The  rules  which  point  out  the  manner 
in  which  the  attendance  of  witnesses  is  to  be  procured,  evi- 
dence is  to  be  taken  on  commission,  depositions  are  to  be 
authenticated  and  forwarded  to  the  proper  officers,  inter- 


INTRODUCTION.  XV 

rogatories  are  to  be  administered,  &c,  have  little  to  do 
with  the  general  principles  which  regulate  the  relevancy 
and  proof  of  matters  of  fact.  Their  proper  place  would 
be  found  in  codes  of  civil  and  criminal  procedure. 

A  similar  remark  applies  to  a  great  mass  of  provisions 
as  to  the  proof  of  certain  particulars.  Under  the  head  of 
"Public  Documents,"  Mr.  Taylor  gives,  amongst  other 
things,  a  list  of  all,  or  most,  of  the  statutory  provisions 
which  render  certificates  or  certified  copies  admissible  in 
particular  cases. 

To  take  an  illustration  at  random,  section  1458  begins 
thus:  "The  registration  of  medical  practitioners,  under 
the  Medical  Act  of  1858,  may  be  proved  by  a  copy  of  the 
'Medical  Register,'  for  the  time  being,  purporting,"  &c. 
I  do  not  wish  for  a  moment  to  undervalue  the  practical 
utility  of  such  information,  or  the  industry  displayed  in 
collecting  it;  but  such  a  provision  as  this  appears  to  me 
to  belong  not  to  the  Law  of  Evidence,  but  to  the  law  relat- 
ing to  medical  men.  It  is  matter  rather  for  an  index  or 
schedule  than  for  a  legal  treatise,  intended  to  be  studied, 
understood,  and  borne  in  mind  in  practice. 

On  several  other  points  the  distinction  between  the  Law 
of  Evidence  and  other  branches  of  the  law  is  more  difficult 
to  trace.  For  instance,  the  law  of  estoppel,  and  the  law 
relating  to  the  interpretation  of  written  instruments,  both 
run  into  the  Law  of  Evidence.  I  have  tried  to  draw 
the  line  by  dealing  in  the  case  of  estoppels  with  estoppels 
in  pais  only,  to  the  exclusion  of  estoppels  by  deed  and  by 


XVI  INTRODUCTION. 

matter  of  record,  which  must  be  pleaded  as  such  ;  and,  in 
regard  to  the  law  of  written  instruments,  by  stating  those 
rules  only  which  seemed  to  me  to  bear  directly  on  the 
question  whether  a  document  can  be  supplemented  or 
explained  by  oral  evidence. 

The  result  is,  no  doubt,  to  make  the  statement  of  the  law 
much  shorter  than  is  usual.  I  hope,  however,  that  com- 
petent judges  will  find  that,  as  far  as  it  goes,  the  statement 
is  both  full  and  correct.  As  to  brevity,  I  may  say,  in  the 
words  of  Lord  Mansfield  : — "  The  law  does  not  consist  of 
particular  cases,  but  of  general  principles,  which  are  illus- 
trated and  explained  by  those  cases."  1 

Ever}'  one  will  express  somewhat  differently  the  princi- 
ples which  he  draws  from  a  number  of  illustrations,  and 
this  is  one  source  of  that  quality  of  our  law  which  those 
who  dislike  it  describe  as  vagueness  and  uncertainty,  and 
those  who  like  it  as  elasticity.  I  dislike  the  quality  in 
question,  and  I  used  to  think  that  it  would  be  an  improve- 
ment if  the  law  were  once  for  all  enacted  in  a  distinct  form 
by  the  Legislature,  and  were  definitely  altered  from  time 
to  time  as  occasion  required.  For  many  years  I  did  my 
utmost  to  get  others  to  take  the  same  view  of  the  subject, 
but  I  am  now  convinced  by  experience  that  the  unwilling- 
ness of  the  Legislature  to  undertake  such  an  operation 
proceeds  from  a  want  of  confidence  in  its  power  to  deal 
with  such  subjects,  which  is  neither  unnatural  nor  un- 


R.  v.   Bembridgc,  8    Doug.  332. 


INTRODUCTION.  3TV11 

founded.  It  would  be  as  impossible  to  get  in  Parlia- 
ment a  really  satisfactory  discussion  of  a  Bill  codifying  the 
Law  of  Evidence  as  to  get  a  committee  of  the  whole  House 
to  paint  a  picture.  It  would,  I  am  equally  well  satisfied, 
be  quite  as  difficult  at  present  to  get  Parliament  to  dele- 
gate its  powers  to  persons  capable  of  exercising  them 
properly.  In  the  meanwhile  the  Courts  can  decide  only 
upon  cases  as  they  actually  occur,  and  generations  may 
pass  before  a  doubt  is  set  at  rest  by  a  judicial  decision 
expressly  in  point.  Hence,  if  anything  considerable  is  to 
be  done  towards  the  reduction  of  the  law  to  a  system,  it 
must,  at  present  at  least,  be  done  by  private  writers. 

Legislation  proper  is,  under  favorable  conditions,  the  best 
way  of  making  the  law,  but  if  that  is  not  to  be  had,  indi- 
rect legislation,  the  influence  on  the  law  of  judges  and  legal 
writers,  who  deduce  from  a  mass  of  precedents  such  prin- 
ciple* and  rules  as  appear  to  them  to  be  suggested  by  the 
great  bulk  of  the  authorities,  and  to  be  in  themselves 
rational  and  convenient,  is  very  much  better  than  none  at 
all.  It  has,  indeed,  special  advantages,  which  this  is  not 
the  place  to  insist  upon.  I  do  not  think  the  law  can  be  in 
a  less  creditable  condition  than  that  of  an  enormous  mass 
of  isolated  decisions,  and  statutes  assuming  unstated  prin- 
ciples; cases  and  statutes  alike  being  accessible  only  by 
elaborate  indexes.  I  insist  upon  this  because  I  am  well 
aware  of  the  prejudice  which  exists  against  all  attempts  to 
state  the  law  simply,  and  of  the  rooted  belief  which  exists 
in  the  minds  of  many  lawyers  that  all  general  propositions 


XV111  INTRODUCTION. 

of  law  must  be  misleading  and  delusive,  and  that  law 
books  are  useless  except  as  indexes.  An  ancient  maxim 
sa}Ts,  "  Oinnis  definitio  in  jure  periculosa."  Lord  Coke 
wrote,  "  It  is  ever  good  to  rely  upon  the  books  at  large ; 
for  many  times  compendia  sunt  dispendia,  and  Melius  est 
petere  fontes  quam  sectari  rivulos."  Mr.  Smith  chose 
this  expression  as  the  motto  of  his  'Leading  Cases,'  and 
the  sentiment  which  it  embodies  has  exercised  immense 
influence  over  our  law.  It  has  not,  perhaps,  been  suffi- 
ciently observed  that  when  Coke  wrote,  the  "books  at 
large,"  namely,  the  'Year  Books'  and  a  very  few  more 
modern  reports,  contained  probably  about  as  much  matter 
as  two,  or  at  most  three,  years  of  the  reports  published  by 
the  Council  of  Law  Keporting;  and  that  the  compendia 
(such  books,  say,  as  Fitzherbert's  'Abridgment')  were 
merely  abridgments  of  the  cases  in  the  '  Year  Books,' 
classified  in  the  roughest  possible  manner,  and  much  infe- 
rior both  in  extent  and  arrangement  to  such  a  book  as 
Fisher's  •  Digest'  * 

In  our  own  days  it  appears  to  me  that  the  true  fontes 
are  not  to  be  found  in  reported  cases,  but  in  the  rules  and 
principles  which  such  cases  imply,  and  that  the  cases 
themselves  are  the  rivuli,  the  following  of  which  is  a  dis- 
pendium.     My  attempt  in  this  work  has  been  emphatically 


*  Since  the  beginning  of  1865  the  Council  has  published 
eighty-six  volumes  of  Reports.  The  Year  Books  from  1307- 
1535,  228  years,  would  fiil  not  more  than  twenty-five  such  vol- 
umes.    There  are  also  ten  volumes  of  Statutes  since  1865 


INTRODUCTION.  XIX 

peiere  fontes,  to  reduce  an  important  branch  of  the  law  to 
the  form  of  a  connected  system  of  intelligible  rules  and 
principles. 

Should  the  undertaking  be  favorably  received  by  the 
profession  an^  the  public.  I  hope  to  apply  the  same 
process  to  some  other  branches  of  the  law ;  for  the  more 
I  study  and  practise  it,  the  more  firmly  am  I  convinced  of 
the  excellence  of  its  substance  and  the  defects  of  its  form. 
Our  earlier  writers,  from  Coke  to  Blackstone,  fell  into  the 
error  of  assorting  the  excellence  of  its  substance  in  a  ful- 
some and  exaggerated  strain,  whilst  they  showed  a  total 
insensibility  to  defects,  both  cf  substance  and  form,  which 
in  their  trrae  were  grievous  and  glaring.  Bentham  seems 
to  me  in  many  points  to  have  fallen  into  the  converse 
error.  Fe  was  too  keen  and  bitter  a  critic  to  recognize 
he  substantial  merits  of  the  system  which  he  attacked; 
and  it  is  obvious  to  me  that  he  had  not  that  mastery  of  the 
law  itself  which  is  unattainable  by  mere  theoretical  study, 
even  if  the  student  is,  as  Bentham  certainly  was,  a  man  of 
talent,  approaching  closely  to  genius. 

During  the  last  twenty-five  years  Bentham's  influence 
has  to  some  extent  declined,  partly  because  some  of  his 
book*  are,  like  exploded  shells,  buried  under  the  ruins 
which,  they  have  made,  and  partly  because,  under  the  influ- 
ence of  some  of  the  ablest  and  most  distinguished  of  living 
authors,  great  attention  has  been  directed  to  legal  history, 
&«d  in  particular  to  the  study  of  Roman  Law.  It  would 
be  difficult  to  exaggerate  the  value  of  these  studies,  but 


XX  INTRODUCTION. 

their  nature  and  use  is  liable  to  be  misunderstood.  The 
history  of  the  Roman  Law,  no  doubt,  throws  great  light  on 
the  history  of  our  own  law;  and  the  comparison  of  the 
two  great  bodies  of  law,  under  one  or  the  other  of  which 
the  laws  of  the  civilized  world  may  be  classified,  cannot 
fail  to  be  in  every  way  most  instructive;  but  the  history 
of  by-gone  institutions  is  valuable  mainly  because  it  en- 
ables us  to  understand,  and  so  to  improve  existing  institu- 
tions. It  would  be  a  complete  mistake  to  suppose  either 
that  the  Roman  Law  is  in  substance  wiser  than  our  own, 
or  that,  in  point  of  arrangement  and  method,  the  Institutes 
and  the  Digest  are  anything  but  warnings.  The  pseudo- 
philosophy  of  the  Institutes,  and  the  confusion  of  the 
Digest,  are,  to  my  mind,  infinitely  more  objectionable 
than  the  absence  of  arrangement  and  of  all  general  theo- 
ries, good  or  bad,  which   distinguish  the  Law  of  England. 

However  this  may  be,  I  trust  the  present  work  will  show 
that  the  law  of  England,  on  the  subject  to  which  it  refers, 
is  full  of  sagacity  and  practical  experience,  and  is  capable 
of  being  thrown  into  a  form  at  once  plain,  short  and  sys- 
tematic. 

I  wish,  in  conclusion,  to  direct  attention  to  the  manner 
in  which  I  have  dealt  with  such  parts  of  the  Statute  Law 
as  are  embodied  in  this  work.  I  have  given,  not  the  very 
words  of  the  enactments  referred  to,  but  what  I  understand 
to  be  their  effect,  though  in  doing  so  I  have  deviated  as 
little  as  possible  from  the  actual  words  empWed.  I  have 
done  this  in  order  to  make  it  easier  to  study  the  subject  as 


INTRODUCTION.  XXI 

a  whole.  Every  Act  of  Parliament  which  relates  to  the 
Law  of  Evidence  assumes  the  existence  of  the  unwritten 
law.  It  cannot,  therefore,  be  fully  understood,  nor  can  its 
relation  to  other  parts  of  the  law  be  appreciated,  till  the 
unwritten  law  has  been  written  down,  so  that  the  provi- 
sions of  particular  statutes  may  take  their  places  as  parts 
of  it.  "When  this  is  done,  the  Statute  Law  itself  admits 
of,  and  even  requires,  very  great  abridgment.  In  many 
cases  the  result  of  a  number  of  separate  enactments  may 
be  stated  in  a  line  or  two.  For  instance,  the  old  Common 
Law,  as  to  the  incompetency  of  certain  classes  of  witnesses, 
was  removed  by  parts  of  six  different  Acts  of  Parliament 
— the  net  result  of  which  is  given  in  five  short  articles 
(106-110). 

So,  too,  the  doctrine  of  incompetency  for  peculiar  or 
defective  religious  belief  has  been  removed  by  many  dif- 
ferent enactments,  the  effect  of  which  is  shown  in  one 
article  (123). 

The  various  enactments  relating  to  documentary  evi- 
dence (see  chap,  x.)  appear  to  me  to  become  easy  to  fol- 
low and  to  appreciate  when  they  are  put  in  their  proper 
places  in  a  general  scheme  of  the  law,  and  arranged  ac- 
cording to  their  subject  matter.  By  rejecting  every  part 
of  an  Act  of  Parliament  except  the  actual  operative  words 
which  constitute  its  addition  to  the  law,  and  by  setting  it 
(so  to  speak)  in  a  definite  statement  of  the  unwritten  law 
of  which  it  assumes  the  existence,  it  is  possible  to  combine 
brevity  with  substantial  accuracy  and  fullness  of  statement 


XXli  INTRODUCTION. 

to  an  extent  which  would  surprise  those  who  are  acquainted 
with  Acts  of  Parliament  only  as  they  stand  in  the  Statute 
Book.*  At  the  same  time  I  should  warn  any  one  who  may 
use  this  book  for  the  purposes  of  actual  practice  in  or  out 
of  court,  that  he  would  do  well  to  refer  to  the  very  words 
of  the  statutes  embodied  in  it.  It  is  very  possible  that,  in 
Btating  their  effect  instead  of  their  actual  words,  1  may 
have  given,  in  some  particulars,  a  mistaken  view  of  their 
meaning. 

Such  are  the  means  by  which  I  have  endeavored  to  make 
a  statement  of  the  Law  of  Evidence  which  will  enable  not 
only  students  of  law,  but,  I  hope,  any  intelligent  person 
who  cares  enough  about  the  subject  to  study  attentively 
what  I  have  written,  to  obtain  from  it  a  knowledge  of  that 
subject  at  once  comprehensive  and  exact — a  knowledge 
which  would  enable  him  to  follow  in  an  intelligent  manner 
the  proceedings  of  Courts  of  Justice,  and  which  would 
enable  him  to  study  cases  and  use  text-books  of  the  com- 
mon kind  with  readiness  and  ease.  I  do  not  say  more  than 
this.  I  have  not  attempted  to  follow  the  matter  out  into 
its  minute  ramifications,  and  I  have  avoided  reference  to 
what,  after  all,  are  little  more  than  matters  of  curiosity. 
I  think,  however,  that  any  one  who  makes  himself  thor- 
oughly acquainted  with  the  contents  of  this  book,    will 


*  Twenty  articles  of  this  work  represent  all  ihat  is  material 
in  the  ten  Acts  of  Parliament,  containing  sixty-six  sections, 
which  have  been  passed  on  the  subject  to  which  i*  refers.  For 
the  detailed  proof  of  this,  see  Note  XLIX. 


INTRODUCTION.  XX111 

know  fully  and  accurately  all  the  leading  principles  and 
rules  of  evidence  which  occur  in  actual  practice. 

If  I  am  entitled  to  generalize  at  all  from  my  own  expe- 
rience, I  think  that  even  those  who  are  already  well 
acquainted  with  the  subject  will  find  that  they  understand 
the  relations  of  its  different  parts,  and  therefore  the  parts 
themselves  more  completely  than  they  otherwise  would, 
by  being  enabled  to  take  them  in  at  one  view,  and  to  con- 
sider them  in  their  relation  to  each  other. 


J.  F.  S. 


4,  Paper  Buildings,  Temple, 
May,  1876. 


TABLE   OF   CASES   CITED, 


PAGE 

136 

132 

146 

102,  103 

82 


Adams  v.  Lloyd 
A.  G.  v.   Bryant  . 

v.  Hitchcock 

Aldous  v.  Cornwell 
Alivon  v.  Furnival 

Allen  v.  Dundas       ...  55 

v.   Prink 108 

Allgoodv.  Blake     .    .    .  1S5 

Allison's  Case      ....  67 

Alner  v.  George      .    .    .  166 

Anderson  v.  Weston  .    .  100 
Angel  v.    Duke  .        .107 

Annesley  v.  Anglesea     .  135 

Appleton  v.  Braybrooke  1S1 

Armoury  v.  Delamire    .  118 
Aveson  v.  L'd  Kinnaird  6,  22 

B. 

Bacon  v.  Chesney  ...  80 
Bailey  v.  Bidwell     .        .  86 
Bank  of  Hindustan,  Alli- 
son's Case 67 


PAGB 

Bank  of  Ireland  v.  Evans  190 

Baron  de  Bode's  Case    .  65 

Barrett  v.  Long  ....  21 

Barrs  v.  Jackson    ...  57 

Barton  v.  Dawes    ...  107 

Bateman  v.  Bailey  ...  12 

Bauerman  v.  Radenius  .  166 

Baylis  r.  A.  G Ill 

Beatson  v.  Skene    .    .    .  132 

Beeston's  Case    ....  49 
Berkeley  Peerage  Case— 

47,  172,  17S 

Biddle  v.  Bond    ....  127 

Birtv.  Barlow 69 

Blackett    v.    Royal    Ex- 
change    Ill 

Boyse  v.   Rossborough  .  14 

Bradley  v.  James    ...  41 

Bain  v.  Precce  ....  40 
Brassington  v.   Brassing- 

ton 136 

Breton  v.  Cope   ....  85 

Bristow  v.  Sequeville  .    .  65 


XXVI 


TAI3LE   OF    CASES   CITED. 


PAGE 

Brittain  v.  Kinnaird  .    .  62 

Broad  v.  Pitt 197 

Brough  v.    Lord   Scars- 
dale  9 

Brown  v.  Foster  ....  135 

Bruce  v.  Nicolopulo  .    .  82 

Burgess  v.  Langley     .  133 

Butler  v.  Moore  .    .  195,  197 


Caddy  v.  Barlow   ...  55 
Caermarthen   R'y  Co  v. 

Manchester  R'y  Co  .  80 

Call  v.  Dunning  ....  85 

Calvert  v.  Flower  .    .    .  151 

Calypso,  The 61 

Carrv.  L.  &  N.  W.  R.R.  191 

Carter  v  .  Boehm    ...  65 

Cartwright  v.  Green  .    .  13S 
Castrique   v.     Imrie — 

58,  60,  63   65,  175 

Catherwood  v.  Caslon  .  69 

Chambers  v.  Bernasconi  39 

Charlton   v.    Coombes  .  134 

Charter   v.   Charter    .    .  1S4 

Chasemore  v.  Richards..  123 

Chubb  v.  Salomons    .    .  132 

Clay  v.  Langslow    .    .    .  167 

Clayton  v.  Lord  Nugent.  Ill 

Clifford  v.  Burton  ...  29 

Closmadeuc  v.   Carrel  .  100 

Cole  v.  Sherard  ....  75 

Collins  v.  Bantuti    .    -    .  86 


PACK 

Coole  v.  Braham    ...  80 

Cooper  v.  Tamswell  .    .  86 

Cope  v.  Cope 121 

Cory  v.  Bretton  ....  82 
Crease  v.  Barrett      44,  45   46 

Cronk  v.    Frith  ....  85 

Crossley  v.  Dixon  .    ,    ,  127 

Curry  v.    Walter   .    .    .  131 

D. 

Da  Costa  v.  Jones  .    .   .    154 

Daniel  v.  Pitt 31 

Dartmouth,  Lady  v.  Rob- 
erts     180 

Davidson  v.  Cooper  102    103 
Davies  v.  Lowndes  46,  4S,  173 


v.  Waters    . 

137 

Di  Sora  v.  Phillipps  .    . 

65 

Dixon  v.  Hammond  .    . 

127 

Doe  v.  Barton     . 

.    . 

126 

v.  Baytup    . 

126 

v.  Beaviss    . 

.    . 

43 

v.  Brydges  . 

.    . 

58 

v.  Catomore 

.    . 

1^2 

v.  Coulthred 

.    . 

117 

v.  D  ite    .    . 

.    . 

136 

v.  Derby 

49 

Doe  d.  Devine  v.  V 

Zilson 

122 

Doe  v.    Edwards 

75 

Doe   d.    Hammonc 

1    v. 

Cooke   .... 

124 

v.  Hiscocks — 

112 

.  134 

185 

TAELK    OF    CASES   CITED. 


XXV11 


PAGE 

Doe  v.  Hodgson     .    .    .    151 

v.   Kemp     ....         6 

v.  Needs  .    .    .  113,  184 

v.  Pegg 126 

v.  Pulman       ...         8 

v.  Ross 88 

v.  Sackermore    .    .       63 

v.  Smyth      ....    126 

v.  Tatham — 

49.  156,  163,  175 

v.  Turford  ....      39 

v.  Vowles    ....      43 

v.  Wilson    ....    122 

Doncaster,  Mayor  of,  v. 

Day 4S 

Dover  v.  Child  ....  56 
Duchess    of    Kingston's 

Case  58  61  63.136,174  175 
Duke     of     Bedford      v. 

Lopes 8 

Duke     of    Newcastle    v. 

Broxtowe 46 

Dunn's  Case 19 

Du  Barre  v.  Livette  .  .  196 
Dwyer  v.  Collins     83,  S4,  17? 

E. 

Elkin  v.  Janson  ....  119 
Entick  v.  Carrington  ,  .  81 
Evans  v.  Beattie  ...  30 
v.  Rees 171 

F. 

Fairlie   v.    Hastings  .    .    16V 


PAGE 

Fenwick   v.   Thornton  .  27 

Feversham  v.  Emerson  .  59 

Few   v.    Guppy  ....  137 

Flitters  v.  Alltrey    ...  56 

Follett  v.   Jefferyes  .    .  134 

Foote  v.  Hayne  ....  134 

Fouikes  v.  Chadd  ...  67 

Freeman  v.  Cooke. .  125  190 

Fry  v.  Wood   .....  43 


Garland  v.  Jacomb 
Gerish  v.  Chartier 
Geyer  v.  Aguilar 
G.bson  v.  Hunter  . 
Gillies  v.  Smither    . 
Gleadow  v.  Atkin    . 
Godard  v.  Gray  .    . 
Goodtitle  v.  Baldwin 
Gorrissen  v.  Pernn 
Gosling  v.  Birnie    . 
Goss  v.  Lord  Nugent 
Gray's    Case     .    .    . 
Green  v.  New  River  ( 
Greenough  v   Eccles 

v.  Gaskell    .    . 

Guy  v.  West    .    .    . 


.  127 
.       20 

55.  53 
.  21 
.  S5 
40,  171 
63,  175 
.  122 
.  Ill 
.     127 

108,133 
.       38 

o  55. 60 
.  201 
.  195 
.    117 


H. 

Halifax  Guardians  v. 

wnght 

Hall  v.  Bainbridge 
Hall  v.  Hill    .    .    . 


Wheel- 
.    .     190 
.    .     101 
.    .     113 


Hammond  v.  Bradstreet     45 


XiVlll 


TABLE   OF   CASKS   CITED. 


PAGE 

Hardman  v.  Wilcock  .  127 
Harratt  v.  Wise  ....  22 
Helyear  v.  Hawke  .  .  29 
Hetherington  v.  Kemp  .  24 
Higham    v.    Ridgway — 

42,  43,  170 
Hiscocks  v.  Hiscocks  .  185 
Holcomb  v.  Hewson  .  .  18 
Holt  v.  Squire  ....  30 
Hope  v.  Liddell  ...  136 
Hopewell  v.  De  Pinna  .  121 
Houlston  v.  Smith  .    .    .    100 

How  v.  Hall 84 

Howard  v.  Hudson  .  .  125 
Hunter  v.  Atkins    ...    117 

v.  Leathly   .    .   136.137 

Hurst  v.  Leach  ....  113 
Hutchinson   v.    Bernard     50 


Ireland,  Bank  of,  v.  Evans  190 


Jaggersv.  Binning  . 
Jarrett  v.  Leonard  . 
Jones  v.  Stevens    . 

v.  Williams    . 

Johnson  v.  Kershaw 

K. 


Kemp  v.  King    ....    136 
Kempland  v.    Macaulay     81 


PACE 

Kingston,  Duchess  of, — 

Case  53,  61,63,  136.  174,  175 
Kirkstall  Brewery  Co.   v. 

Furness  Railway  Co.  .  29 
Knight  v.  Clements  .  .  102 
Knights  v.  Wiffen  .  .  .  125 
Koster  v.  Reed   ....    118 


Lady  Dartmouth  v.  Rob- 
erts        .    .  180 

Lady  Ivy's  Case  ....  14 

Langhorn  v.  Allnutt  .    .  29 

Leconfield   v.    Lonsdale  123 

Leev.  Pain 112 

Leeds  v.  Cook     ....  84 

Leggatt  v.  Tollervey  .    .  55 

Legge  v.  Edmonds    .    .  121 

Ley  v.  Barlow     ....  147 

Lindley  v.  Lacey    .    .    .  107 

Lothian   v.  Henderson  .  58 

Lucas  v.  De  la  Cour  .    .  2d 

M. 

v.  Moor 72 

Malcolmson  v.  O'Dea  .  155 

Mann  v.  Langton  .  .  .  154 
Marine    Investment    Co. 

v.  Haviside 100 

Marston  v.  Downes  .  .  81 
Mayor   ol    Doncaster  v. 

Day 48 

McMahon  v.  McElroy  .  121 


TABLE    OF    CASES    CITED. 


PAGE 

Meyer  v.  Sefton  ....  82 

Miles  v.  Oddy     ....  SI 

Miller   v.   Travers  .    .    .  112 

Mills  v.    Berber  ....  117. 

Minet    v.  Morgan  .    .    .  135 

Morgan  v.  Griffiths     .    .  107 
Moriarty    v.    L.  C.  &   D. 

Railway   ...   11.  27,  166 

Morris  v.  Davies     ...  121 

Morns  v.  Miller  ....  69 

Mortimer  v.  McCallan  .  82 

Muggleton  v.    Barnett  .  9 
Munn  v.  Godbold  .    .  80,  82 


N. 

Noe<Jh3Tn  v.  Bremner 
Neil  v.  Jakle    .    .    . 
Nepean  v    Doe    .    . 

v.  Knight     .    . 

Newcastle     Duke    of, 

Broxtowe     .    .    . 
N<-wron    v.    Chaplin 
Noble  v.  Ward    .    . 
Noden  v.  Murray  . 


Omichund  v.  Barker 


56 

10 

121 

121 


46 

S2 

1S3 

80 


142 


P. 

Paddock  v.  Forester  .  .  82 
Palmer  v.  Trower  .  .  .  146 
Papendick  v.  Bridgewater  44 
Pearce  v.  Hooper  ...       86 


PAGE 

Pearse  v.  Pearse    .    . 

135 

Pftch  v.   Lyon    .    .    . 

30 

Petrie  v.  Nuttall  .    .    . 

61 

Phelps  v.    Prew  .    .    . 

137 

Phene's  Trust,   re  .    . 

121 

Philips  v.   Bury  .    .    . 

55 

Pickard  v.  Sears  .    .12; 

)    190 

Pickering   v.   Noyes  . 

136 

Picton's  Case  .... 

,      65 

Pigott's   Case  .... 

102 

Pirn  v    Curell  .... 

46 

Pipe  v.  Fulcher  .    .    . 

.      45 

Piper  v.  Chappell  .    . 

.      74 

Plaxton  v.  D  tre  .    .    . 

.      46 

Plumer   v.   Bnsco  .    . 

.      S6 

Plunket   v.    Cobbett  . 

.    132 

Pocock  v.    Billing 

.      27 

Poole    v.    Warren  .    . 

.      86 

Preston's  Case    .    .    . 

21 

Price  v.  Torrington  .  8 

I  169 

Pritt  v.    Fairclough    . 

.      39 

Pym  v.  Campbell 

.    108 

Q. 

Queen's  Case,  The  .  15 

5,  177 

R. 

R.  v.  154 

v.  All  Saints,  Wor- 
cester      138 

v.  Baker 169 

v.  Baldry     ....  168 

v.  Barnard  ....  18 

v.  Bathwick  ...  188 


XXX 


TABLE    OF    CASES    CITED. 


R.  v 


PAGE 

.  Bembridge    .    . 

xvi 

v.  Blake  .... 

7 

v.  Bliss     .... 

.      45 

v.  B  .swell   .    .    . 

.      33 

v.  Boyes  .... 

.    18S 

v.  Butler     .    .    . 

.    117 

v.  Canning      .    . 

.      24 

v.  Castleton     .    . 

.      82 

v.  Cheadle  .    .   lb 

t.  188 

v.  Chidley  &   Curr 

i" 

ngs 

.      85 

v.  Clapli.im     .    . 

.       40 

v.  Clarke     .    .    . 

14S 

v.  CI  ewes   .    .    .  1( 

\     34 

v.  Cliviger  .    .    . 

138 

v.  Cole     .... 

17 

v.  Davis   .... 

18 

v.  Donellan     .    . 

14 

v.  Doolin     .    .    . 

143 

v.  Dove    .... 

66 

v.  Drummond    . 

149 

v.  Dunn      ...  If 

,     19 

v.  Edmunds    .    . 

10 

v.  Eriswell  .    .    .    . 

48 

v.  Exeter     .    .    .    . 

43 

v.  Forster    .    .    .    , 

20 

v.  Foster     .    .    .    . 

6 

v.  Foulkes  .    .    .    . 

5 

v.  Francis    .    .    .    . 

20 

v.  Francklin    .    .    . 

52 

v.  Garbett   .    .    .    . 

35 

v.  Girner    .    .    .    . 

23 

v.  Gazard     .    .    .    . 

131 

v.  Geering  .    .    .    . 

28 

PAHR 

R.  v.  G'lham 84 

v.  Gordon    ....  102 

v.  Gould 85 

v.  Gray 23 

v.  Griffin     ....  197 

v.  Harborne   .    .    .  121 

v.  Hardy      ...  7,  132 

v.  Harringworth  85,  179 

v.  Hartington,  Mid- 
dle Quarter 56 

v.  Haworth     ...  81 

v.  Heyford  ....  43 

v.  Hind 88 

v.  Hogg 4S 

v.  Holmes  ....  149 

v.  Holt 20 

v.  Home  Tooke    .  68 

v.  Hull 10S 

v.  Hutchinson    .    .  38 

v.  Jarvis 119 

v.  Jenkins    ....  38 

v.  Llanfaethly     .    .  84 

v.  Lloyd 34 

v.  Lord  George  Gor- 
don      13 

v.  LordThanet  .    .  194 

v.  Luffe 121 

v.  Lumley  ....  121 

v.  Mainwaring  .    .  69 

v.  Mansfield   ...  121 

v.  Martin    ....  149 

v.  Mead 88 

v.  Moore     ....  84 

v.  Mosley    ....  87 


TABLE   OP    CASES    CITED. 


XXXI 


R.  v.  Oddy  .... 

v.  Orton    .    .    . 

v.  Palmer  11,22 

v.    Parbhudas 

Others 

v.  Patch  .    .    . 

v.  Payne      .    . 

v.  Pike     .    .    . 

v.  Richardson    . 

v.  Rowton     .    . 

v.  Russell    .    . 

v.  Scaife     .    .    . 

v.  Scott    .    .    . 

v.  Sparkes  .    . 

v.  Stephenson 

v.  Stone  . 

v.  Sutton     .    . 

v.  Tait     .    .    . 

v.  Thompson 

v.  Thornhill    . 

v.  Turner    .    . 

v.  Twyning     . 

v.  Walker  .    . 

v.  Warwickshall 

v.  Watson 

v.  Whitehead 

v.  Widdop  .    . 

v.  Woodcock 

Radcliffe  v.  Fursman 
Randall  v.  Lynch  . 
Rawson  v.  Haigh  . 
Rearden  v.  Minter 
Reeve  v.  Wood  . 
Reffell  v.    Reffell    . 


PAGE 

.  18 

53,  145 

66,  67 

and 

.  159 

.  11 

.  130 

.  149 

23,  132 

71,  176 

.  193 


43,  49 
35 

195 
49 

119 
52 
50 

130 
76 
61 

116 
12,  157 
35 
81 

144 
35 
3S 

135 
85 
12 
86 

130 

105 


SO, 


Roberts  v.  Doxen  .  .  . 
Robinson  v.  Yarrow  .  . 
Roe  d.  West  v.  Eavis  . 
Rogers  v.  Allen  .... 
Rowley  v.   L.  &  N.  W. 

R.   R 

Ryall  v.  Hannam    .    .    . 

S. 


PAGB 

82 

127 

79 


65 
113 


Sanderson  v.  Colemar 

i  .    127 

Sandilancis,    re    .    .    . 

.    101 

Sheen  v.  Bumpstead  . 

.       21 

Sheridan  v.  New  Quay  .    127 

Shields  v.  Boucher    . 

.  17a 

Shore  v.  Wilson   .    . 

.    112 

Short   v.  Lee    .    .    .  170,  171 

Shrewsbury  Peerage  Case     47 

Simmons   v.  Rudall    . 

.    10£ 

Sinclair  v.  Baggally   . 

.    100 

Skilbeck  v.  Garbett   . 

.      24 

Slane  Peerage  Case  . 

.      S9 

Slattene  v.  Pooley  .    . 

.      79 

Smith   v.  Blakely    .    . 

.  "  39 

v.  Morgan  .    .    . 

.      27 

v,  Wh  ppingham 

.      80 

v.  Wilson    .    .    . 

.    Ill 

Spargo  v.  Brown    .    . 

.    166 

Springer  v.  Gardiner  . 

.    186 

Stead  v.   Heaton   .    . 

.      43 

Stoate  v.  Stoate  .    .    . 

.      57 

Stobart  y.  Dryden  . 

.      26 

Stockfleth    v.   De   Ta 

stet     32 

Stowe  v.  Querner   . 

.      7* 

xxxn 


TABLE    OF   CASES    CITED. 


PAGK 

PAG8 

Stringer  v.  Gardiner  .    . 

113 

Weeks  v.  Sparke    .    .44, 

172 

Sugden  v.  St.   Leonards 

44 

Weston  v.  Eames   .    .    . 

107 

Sussex  Peerage  Case  44, 

150 

Wharam  v.  Routledge   . 

151 

Swan    v.  N.  B.  Austra- 

Whitaker v.  Izod   .    .    . 

136 

lasian  Co 126, 

190 

v.  Jackson  .... 

59 

Whitcomb  v.  Whitting  . 

29 

T. 

Whittuck  v.  Walters  .    . 

47 

Whyman   v.    Garth  .  85, 

9 

Talbot  v.  Hodson  .   .   . 

87 

Wigglesworth  v.  Dallison 

, 

Taylor  v.   Foster   .    .    . 

184 

106, 

183 

Thurtell   v.  Beaumont  . 

116 

Williams  v.  Bridges  .    . 

81 

Trelawney  v.  Coleman  . 

22 

v.  East  India  Co    . 

116 

Turquand  v.  Knight  .    . 

184 

v.  Graves         ... 

43 

Wilson  y.  Anderton  .    . 

127 

v. 

v.  Rastal      .... 

134 

Wing  v.  Angrave  .    .    . 

122 

Vaise  v.  Delaval   .    .   . 

133 

Woodcock    v.     Houlds- 

Volant  v.  Soyer  .... 

137 

worth. 

24 

Vooght  v.  Wince  .   .   . 

69 

Wright  v.  Doerf.Tatham, 

12 

,  64 

W. 

Y. 

Wallis  v.  Littell  .... 

108 

Warren  v.  Warren    .    . 

24 

Young  v.  Clare  Hall  .    . 

170 

Webb  v.  Bird  .... 

123 

Young  v.  Grote    .   .  126, 

191 

TABLE  OF  STATUTES  CITED, 


PAGE 

7  James  I.  c.  12  ...  .  54 
7  &  8  Will.  III.  c.  8,  ss. 

2,  4 139,  208 

89  &   40    Geo.    III.    c. 

93 HO,  203 

41  Geo.  III.  c.  90,  s.  9  .  93 
46  Geo.  III.  c.  37  .  138,  203 
7  Geo.  IV.  c.  64,  s.  4  .    .      51 

7  &  8  Geo.  IV.  c.  28,  s. 

11 71,  203 

9  Geo.  IV.  C.14.S.  1  .  23,  202 
,  s.  8  .    .    .    .  41.  42    202 

8  &  4  Will.  IV.  c.  42  .  42,  203 

5  &  6  Will.  IV.  c.  50,  s. 
100 193 

6  &  7  Will.  IV.  c.  111.  71,  202 
1  &  2  Vict.  c.  94,  ss.  1, 

12,  13 89,  91 

c.  105 142 

8  &  4  Vict.  c.  26  .  .  .  .  193 
6  &  7  Vict.  c.  85  .  .  193.  208 
8  &  9  Vict.  c.  10,  s.  6.139,  203 


PAGE 

8  &  9  Vict.  c.  118  (pream- 
ble) . 90,  208 

,  s.  1 208 

,  s.  2 75,  204 

,  s.  8 98,  204 

,  ss.  4,  5,  6,  7  .  .  .  204 

c.  113 208 

11  &  12  Vict.  c.  42,  s. 

17  .  .  .  49, 50, 169  .  20S 

13  &  14  Vict.  c.  21,  ss. 

7,  S 78 

14  &  15  Vict.  c.  99  .  .  204 

,  s.  2 193,  204 

,  s.  4 205  208 

,s.  7 97.  205 

,  ss.  9,10,11,19  .  92.  205 

,  s.  14  ....  92,  205 

,  s.  16  .  .   .  142,  205 

16  &  17  Vict.  c.  88,  ss. 

1,  2 193,  208 

,  s.  8 131 

17  &  18  Vict.  c.  125  .  205,  207 

b 


XXXIV 


TABLE   OF   STATUTES   CITKD. 


PAGE 

17  &  18  Vict.  c.  125,5.2  148 

28 

,  ss.  22-27  ....  209 

,  s  20 141 

— 

,  ss  22  27 206 

,  s.  24 147 

,  s.  26  .....  87,  180 

80 

,  s.  27 69,  206 

81 

18  &  19  Vict,  c  111,  s. 

82 

3 128 

19  &  20  Vict.  c.  97,  s. 

24  &  25  Vict.  c.  66  .  141,  2^6 

88 

c.  96,  s.  116  .  .  71,  203 

c.  99,  s.  87  .  .  71.  208 

34 

28  &  29  Vict.  c.  18,  ss. 

1,  7 87,  180,  202 

85 

,  s.  S 148 

86 

,  ss.  8-8  .  .  .  .  206,  209 

,  s.  4 207 

87 

,  s.  5 147,  207 

,  s.  6 146,  207 

PAGE 

&  29  Vict.  c.  18,  s.  7,  .    207 
,s.  8,    .        .    .66,  69,  20 

— ,  s.  18 65 

c.  63,  s.  6     ....      93 

c.  104,  s.  84    ...    130 

»&81Vict.c.85,s.  6.51.  202 

&  32  Vict.  c.  87.  94,95,  207 

&  33  Vict.  c.  68  ...    207 

— ,  s.  2 138 

— ,  s.  8 181,  198 

— ,  s.  4 141,  192 

&  84  Vict.  c.  49  .  141,  208 

c.  79,  s.  21.      ...      94 

&  85  Vict.  c.  70,  s.  5.     94 

•  c.  112,  s.  19    .      18,  202 

:  36  Vict.  c.  6,s.4. 189,208 

&  37  Vict.  c.  66,  s.  25.     78 

s.  76, 75 

&  88  Vict.  c.  85  .    .    .    193 
-,  c.  96 198 


LIST  OF  ABBREVIATIONS, 


A.  &  E.     . 

,    . 

Atk.      .    .    , 

- 

B.  &  A.     .    , 

a 

B.  &  Ad.  .    . 

. 

13.  &  B.     .    . 

. 

B.  &  0.      .    . 

. 

Beav.    .    •    , 

. 

Bell,  C.  C.     . 

Best,      .    .    , 

• 

B.  &  S.      . 

. 

Bing.     .    . 

■    . 

Bing.  N.  C. 

>    . 

B.  N.  P.     . 

.     . 

Br.  P.  C.   . 

Buller,  N.  P. 

Cam.     .    . 

Car.  &  Kir. 

. 

C.  B.     .     .    . 

C.  B.  (N.  S.) 

. 

C.  C.  C.     . 

Cox,  Cr.  Ca. 

Adolphus  &  Ellis's  Reports. 
Atkyn's  Reports. 

Barnewall  &  Alderson's  Reports. 
Barnewall  &  Adolphus's  Reports. 
Broderip  &  Bingham's  Reports. 
Barnewall  &  Cresswell's  Reports. 
Beavan's  Reports. 
Bell's  Crown  Cases. 
Best  on  Evidence,  6th  ed. 
Best  &  Smith's  Reports. 
Bingham's  Reports. 
Bine-ham's  New  Cases. 
Builer's  Nisi  Prius. 
Brown's  Parliamentary  Cases. 
Builer's  Nisi  Prius. 

Campbell's  Reports. 

Carrington  &  Kirwan's  Reports. 

Common  Bench  Reports. 

Common  Bench  Reports.     New  Series. 

Cox's  Crown  Cases. 


LIST    OF   ABBREVIATIONS. 


C.  &  F.  . 
C.  M.  &  R. 
C.  &  Marsh. 

Cowp.  .  . 
C.  &  P.  . 
C.  &  J.       . 

D.&B  . 
Dear.,  or  . 
Dearsle}'  &  P 
De  G.  &  J 
De  G.  M.  i 
De  G.  &  S. 
Den.  C.  C. 
Doug.  .  . 
Dru.  &  War 


G.  . 


.  Clark  &  Finnelly's  Reports. 

.  Crompton,  Meeson,  &  Roscoe's  Reports 

.  Carrington  &  Marshman's  Reports. 

.  Cowper's  Reports. 

.  Carrington  &  Paine's  Reports. 

.  Crompton  &  Jervis's  Reports. 

.    Dearsley  &  Bell's  Crown  Cases. 

'  >  Dearsley's  Crown  Cases. 

.     De  Gex  &  Jones's  Reports. 

De  Gex,  Macnaughten  &  Gordon. 
De  Gex  &  Smale's  Reports. 
Denison's  Crown  Cases. 
Douglas's  Reports. 
Drury  &  Warren's  Reports. 


Ea East's  Reports. 

East,  P.  C.     .    .  East's  Pleas  of  the  Crown. 

E.  &  B.      ...  Ellis  &  Blackburn's  Reports. 

Esp Espinasse's  Reports. 

Ex Exchequer  Reports. 


F.  &F. 


.    Foster  &  Finalson's  Reports. 


Gen.  View  Cr.  Law,Stephen's  General  View  of  the  Criminal 

Law. 


Hale,  P.  0.    .    .  Hale's  Pleas  of  the  Crown. 

Hare,     ....  Hare's  Reports. 

H.  Bl H.  Blackstone's  Reports. 

H.  &  C.     .    .    .  Hurlston  &  Coltman's  Reports. 

H.  &  N.     ...  Hurlston  &  Norman's  Reports. 

H.  L.  C.    .    .    .  House  of  Lords  Cases. 


LIST    OF    ABBREVIATIONS. 


It.  Cir.  Rep. 

Ir.  Rep.  Eq.    . 

• 

Jac.  &  Wal.  . 

. 

4ebb,  C.  C.    . 

• 

Keen,    .    .    , 

• 

L.  &  C.     .    . 

m 

Leach,   .    . 

L.  J.  Ch.   .     . 

a 

L.  J.  Eq.    .      . 

. 

L.  J.  M.  C.    . 

, 

L.  J.  N.  S.     . 

, 

L.  R.  Ch.  Ap. 

. 

L.  R.  C.  C. 

. 

L.  R.  C.  P.    . 

. 

L.  R.  Ex.  .     . 

. 

L.  R.  Q.  B.    . 

Madd.   .    .    . 

Man.  &  R. 

. 

McNallv  Ev. 

Moo.  C.  C.    , 

M.  &  G.    .    , 

. 

M.  &K.    . 

,       . 

M.  &  M.    . 

. 

Moo.  P.  C. 

Mo.  &  Ro. 

. 

M.  &  S.     . 

, 

M.  &  W.  . 

-       • 

Pea.  R.     . 

. 

Phill.     .    . 

Irish  Circuit  Reports. 
Irish  Equity  Reports 

Jacob  &  Walker's  Reports. 
Jebb's  Criminal  Cases  (Ireland). 

Keen's  Reports,  Chancery. 

Leigh  &  Cave's  Crown  Cases. 

Leach's  Crown  Cases. 

Law  Journal,  Chancery. 

Law  Journal,  Equity. 

Law  Journal,  Magistrates'  Cases. 

Law  Journal.     New  Series. 

Law  Reports,  Chancery  Appeals. 

Law  Reports,  Crown  Cases  Reserved. 

Law  Reports,  Common  Pleas. 

Law  Reports,  Exchequer. 

Law  Reports,  Queen's  Bench. 

Maddock's  Reports. 
Manning  &  Ryland's  Reports. 
McNally's  Rules  of  Evidence. 
Moody's  Crown  Cases. 
Manning  &  Granger's  Reports. 
Mylne  &  Keen's  Reports. 
Moody  &  Malkin's  Reports. 
Moore's  Privy  Council  Reports. 
Moody  &  Robinson's  Reports. 
Maule  &  Selwyn's  Reports. 
Meeson  &  "Welsby's  Reports. 

Peake's  Reports. 
Phillips's  Reports. 


S.  L.  C,  or 

Smith,  L.  C 


Ph.    Ev.    .    .    .  Phillips  on  Evidence,  10th  ed. 

Price     ....  Price's  Reports. 

Q.  B Queen's  Bench  Reports. 

R.  N.  P.     .     .     .  Roscoe's  Nisi  Prius,  13th  ed. 

R.  &  R.      ...  Russell  &  Ryan's  Crown  Cases. 

Russ.  on  Crimes.  Russell  on  Crimes,  4th  ed. 

Selw.  N.  P.    .     .  Selwyn's  Nisi  Prius. 

Simon    ....  Simon's  Reports. 

Simon  (N.  S.)     .  Simon's  Reports.     New  Series. 

Sim.  &  Stu.    .     .  Simon  &  Stuart's  Reports. 

[  >  Smith's  Leading  Case1:,  7th  ed. 

Star Starkie's  Reports. 

Starkie  ....  Starkie  on  Evidence,  4th  ed. 

S.   &  T.    .    .    .  Swabey  Tristam's  Reports. 

S.  T.,  or  St.  Tri.  State  Trials. 

Story's  Eq.  Jur.  Story  on  Equity  Jurisprudence. 

Swab.  Ad.      .    .  Swabey's  Admiralty  Reports. 

T.  R Term  Reports. 

T.  E Taylor  on  Evidence,  6th  ed, 

Tail.      ....  Taunton's  Reports. 

Ve Vesey's  Reports. 

„T.      „      „        '  >  Wisrram  on  Extrinsic  Evidence. 

Wig.  Ext.  Ev.     •  J        8 

Wills's  Circ.  Ev.  Wills  on  Circumstantial  Evidence. 


CONTENTS. 


PAET  I.— EELEYANCY. 

Chapter  I. — Preliminary. 
Art.  1.  Definition  of  Terms    ....    Page  1-3 

Chapter  LL — Op  Facts  in  issue  and  Relevant  to 

THE  ISSUE. 

Art.  2.  Pacts  in  issue  and  Facts  relevant  to  the  issue  may 
be  proved — 3.  Relevancy  of  facts  forming  part  of  the 
same  transaction  as  Facts  in  issue — i.  Acts  of  Conspir- 
ators— 5.  Title — 6.  Customs — 7.  Motive,  preparation, 
subsequent  conduct,  explanatory  statements — 8.  Facts 
necessary  to  explain  or  introduce  relevant  Facts — 9. 
General  definition  of  Relevancy    ....    4-16 

Chapter  III. — Occurrences  similar  to  but  uncon- 
nected with  the  Facts  in  issue,  Irrelevant  except 
in  certain  cases. 

Art.  10.  Similar  but  unconnected  Facts — 11.  Acts  show- 
ing intention,  good  faith,  &c. — 12.  Facts  showing  sys- 
tem— 13.  Existence  of  course  of  business  when  rele- 
vant           17-24 


CONTENTS. 


Chapter  IV. — Hearsay  Irrelevant  except  in  certain 
Cases. 

Art.  14.  Hearsay  irrelevant — 15.  Admissions  defined — 
16.  Who  may  make  admissions,  and  when — 17.  Admis- 
sions by  agents  and  persons  jointly  interested  with  par- 
ties— 18.  Admission  by  strangers  to  an  action  — 19. 
Admission  by  person  referred  to  by  party — 20.  Ad- 
missions made  without  prejudice — 21.  Confessions  de- 
fined —  22.  Confession  caused  by  inducement,  threat, 
or  promise,  when  irrelevant  in  Criminal  Proceeding 
—  23.  Confessions  made  upon  oath,  &c.  —  24.  Con- 
fession made  under  a  promise  of  secrecy — 25.  State- 
ments by  deceased  persons,  when  relevant — 26.  Dying 
declaration  as  to  cause  of  death — 27.  Declarations  made 
in  the  course  of  business  or  professional  duty — 28. 
Declarations  against  interest — 29.  Declarations  by  tes- 
tators as  to  contents  of  will — 30.  Declarations  as  to 
public  and  general  rights — 31.  Declarations  as  to  pedi- 
gree— 32.  Evidence  given  in  former  proceeding,  when 
relevant — 33.  Deposition*  before  magistrates — 34.  Depo- 
sitions under  30  &  31  Vict.  c.  35,  s.  6 — 35.  Relevancy 
of  statement  in  certain  acts  or  notifications — 36.  Rele- 
vancy of  entry  in  public  record  made  in  performance  of 
duty  —  37.  Relevancy  of  statements  in  maps,  charts, 
and  plans — 38.  Entries  in  tradesmen's  books — 39.  Defi- 
nition of  word  "judgment" — 40.  All  judgments 
conclusive  proof  of  their  legal  effect — 41.  Judgments 
conclusive  as  between  parties  and  privies  of  Facts  form- 
ing ground  of  judgment — 42.  Statements  in  judgments 
irrelevant  as  between  strangers,  except  in  Admiralty 
Cases — 43.  Effect  of  judgment  not  pleaded  as  an  estop- 
pel— 44.    Judgments    generally    irrelevant   as   between 


CONTENTS.  ill 

strangers — 45.  Judgments  conclusive  in  favor  of  Judge — 
46.  Fraud,  collusion,  or  want  of  jurisdiction  may  be 
proved — 47.  Foreign  judgments      .         .         .      25-63 

Chapter  V. — Opinions,  when  Relevant  and  when  not. 

Art.  48.  Opinion  generally  irrelevant — 49.  Opinions  of 
experts  on  points  of  science  or  art — 50.  Facts  bearing 
upon  opinions  of  experts — 51.  Opinion  as  to  handwrit- 
ing, when  relevant — 52.  Comparison  of  handwritings — 
53.  Opinion  as  to  existence  of  marriage,  when  relevant 
— 54.  Grounds  of  opinion,  when  relevant    .         .     64-69 

Chapter  VI. — Character,  when  Relevant  and 

WHEN  NOT. 

Art.  55.  Character  generally  irrelevant — 56.  Evidence  of 
character  in  Criminal  Cases — 57.  Character  as  affecting 
damages 70-72 


xlii  CONTACTS. 


PAET  n.— ON  PEOOF. 

Chapter  Vll. — Facts  which  need  not  be  proved— 
Judicial  Notice. 

Art.  68.  Of  what  Facts  the  Court  takes  judicial  notice — 
69.  As  to  proof  of  such  Facts — 60.  Facts  admitted  need 
not  be  proved Pag©  73-76 

Chapter  Yin. — Of  Oral  Evidence. 

Art.  61.  Proof  of  Facts  by  oral  evidence — 62.  Oral 
evidence  must  be  direct 77,  78 

Chapter  IX. — Of  Documentary  Evidence — Primary 
and  Secondary,  and  Attested  Documents. 

Art.  63.  Proof  of  contents  of  documents — 64.  Pri- 
mary evidence —  65.  Secondary  evidence  —  66.  Proof  of 
documents  by  primary  evidence  —  67.  Cases  in  which 
secondary  evidence  relating  to  documents  may  be  given 
—  68.  Rules  as  to  notice  to  produce  —  69  Proof  of  exe- 
cution of  document  required  by  law  to  be  attested — 70. 
Cases  in  which  attesting  witness  need  not  be  called — 71. 
Proof  when  attesting  witness  denies  the  execution — 72. 
Proof  of  document  not  required  by  law  to  be  at- 
tested        79-87 

Chapter  X. — Proof  of  Public  Documents. 

Art.  73.  Proof  of  public  documents — 74.  Production 
of  document  itself — 75.  Examined  copies  —  76.  Gen- 
eral records  of  the  realm — 77,  78.    Exemplifications — 


CONTENTS.  Xliii 

79.  Certified  copies  —  80.  Documents  admissible 
throughout  the  Queen's  dominions — 81.  Queen's  print- 
ers' copies  — 82.  Proof  of  Irish  Statutes  — 83.  Procla- 
mations, Orders  in  Council,  &c.  —  84.  Foreign  and 
Colonial  Acts  of  State,  judgments,  &c.      .        .      88-98 

Chapter  XI. — Presumptions  as  to  Documents. 

Art.  85.  Presumption  as  to  date  of  document  —  86.  Pre- 
sumption as  to  stamp  of  a  document  —  87.  Presumption 
as  to  sealing  and  delivery  of  deeds  —  88.  Presumption 
as  to  documents  thirty  years  old  —  89.  Presumption  as 
alterations 99-103 

Chapter  XII. — Of  the  Modification  and  Interpreta- 
tion of  Documentary  Evidence  by  Oral  Evidence. 

Art.  90.  Evidence  of  terms  of  contract,  grants,  and  other 
dispositions  of  property  reduced  to  a  documentary 
form  —  91.  What  evidence  may  be  given  for  the  inter- 
pretation of  documents  —  92.  Cases  to  which  articles 
90  and  91  do  not  apply 104-114 


Xliv  CONTENTS. 


PART  III— PRODUCTION   AND    EFFECT 
OF  EVIDENCE. 

Chapter  XIIL — Burden  or  Proof. 

Art.  93.  He  who  affirms  must  prove  —  94.  Presumption 
of  innocence  —  95.  On  whom  the  general  burden  of  proof 
lies  —  96.  Burden  of  proof  as  to  particular  Facts — 97. 
Burden  of  proving  Fact  to  be  proved  to  make  evidence 
admissible     .        .  .        .        .       Page  115-119 

Chapter  XIV. — On  Presumptions  and  Estoppels. 

Art.  98.  Presumption  of  legitimacy  —  99.  Presumption 
of  death  from  seven  years'  absence  —  100.  Presumption 
of  lost  grant  — 101.  Presumption  of  regularity  and  of 
deeds  to  complete  title  — 102.  Estoppel  by  conduct — 
103.  Estoppel  of  tenant  and  licensee  — 104.  Estoppel 
of  acceptor  of  bill  of  exchange  — 105.  Estoppel  of  bailee, 
agent,  and  licensee 120-128 

Chapter  XV. — Of  the  Competency  of  Witnesses. 

Art.  106.  Who  may  testify  — 107.  What  witnesses  are 
incompetent  —  108.    Competency  in    Criminal  Cases — 

109.  Competency  in  proceedings  relating  to  adultery — 

110.  Communications  during  marriage  —  111.  Judges 
and  advocates  privileged  as  to  certain  questions — 112. 
Evidence  as  to  affairs  of  State — 113.  Information  as  to 
commission  of  offences — 114.  Competency  of  jurors — 
115.  Professional  communications — 116.  Confidential 
communications  with  legal  advisers — 117.  Clergymen 
and   medical  men — 118    Production  of   title-deeds   of 


CONTENTS.  xlv 

witnesses  not  a  party — 119.  Production  of  documents 
which  another  person,  having  possession,,  could  refuse  to 
produce — 120.  Witness  not  to  be  compelled  to  criminate 
himself — 121.  Corroboration,  when  required — 122.  Num- 
ber of  witnesses      .   - 129-140 

Chapter  XVI. — Of  the  Examination  of  Witnesses. 

Art.  123.  Evidence  to  be  upon  oath,  except  in  certain 
cases — 124.  Form  of  oaths — 125.  Who  is  to  have  power 
to  administer  oaths — 126.  Examination  in  chief,  cross- 
examination,  and  re-examination — 127.  To  what  matters 
cross-examination  and  re-examination  must  be  directed 
— 128.  Leading  questions — 129.  Questions  lawful  in  cross- 
examination — 130.  Exclusion  of  evidence  to  contradict 
answers  to  questions  testing  veracity — 131.  Statements 
inconsistent  with  present  testimony  may  be  proved — 
132.  Cross-examination  as  to  previous  statements  in 
writing — 133.  Impeaching  credit  of  witnesses — 134.  Of- 
fences against  women — 135.  What  matters  may  be  proved 
in  reference  to  declarations  relevant  under  articles  25-35 
— 136.  Refreshing  memory — 137.  Right  of  adverse  party 
as  to  writing  used  to  refresh  memory — 138.  Giving,  as 
evidence,  document  called  for  and  produced  on  notice — 
139.  Using,  as  evidence,  a  document,  production  of 
which  was  refused  on  notice.        .        .        Page  140-151 

Chapter  XYH. — Of  Improper  Admission  and  Rejec- 
tion of  Evidence 

Art.  140 152 


Appendix  of  Notes 163 

Index, 211 


A   DIGEST 


OF   THE 


LAW  OF  EVIDENCE. 


A    DIGEST 


LAW   OF   EVIDENCE 


PAET  L— KELEVAXCY. 

CHAPTER   L 
PRELIMINARY. 

Article  L* 

DEFINITION   OF    TERMS. 

In  this  book  the  following  words  and  expressions  are  used 
in  the  following  senses  unless  a  different  intention  appears 
from  the  context. 

"Court"  includes  all  persons  authorized  by  any  law  to 
compel  the  attendance  of  witnesses  for  the  purpose  of  de- 
ciding any  question  of  law  or  of  fact,  or  of  law  and  fact. 

"Judge"  includes  all  persons  authorized  to  take  evi- 
dence, either  by  law  or  by  the  consent  of  the  parties. 

"Fact"  means — 


See  Note  I. 


2  a  digest  of  [Part  I. 

(1)  Everything  capable  of  being  perceived  by  the  senses: 

(2)  Every  mental  condition  of  which  any  person  is  con- 
scious. 

Every  part  of  any  fact  is  itself  a  fact.1 

"Document"  means  any  matter  expressed  or  described 
upon  any  substance  by  means  of  letters,  figures,  or  marks, 
or  by  more  than  one  of  those  means,  intended  to  be  used, 
or  which  may  be  used,  for  the  purpose  of  recording  that 
matter.2 

"Evidence"  means — 

(1)  All  statements  which  the  judge  permits  or  requires 
to  be  made  by  witnesses  in  court,  in  relation  to  matters  of 
fact  under  inquiry; 

such  statements  are  called  oral  evidence: 

(2)  All  documents  produced  for  the  inspection  of  the 
Court  or  judge; 

such  documents  are  called  documentary  evidence. 

"Conclusive  Proof"  means  evidence  upon  the  produc- 
tion of  which,  or  a  fact  upon  the  proof  of  which,  the  judge 
is  bound  by  law  to  regard  some  fact  as  proved,  and  to  ex- 
clude evidence  intended  to  disprove  it.3 

"A  Presumption"  means  a  rule  of  law  that  Courts  and 
judges  shall  draw  a  particular  inference  from  a  particular 
fact,  or  from  particular  evidence,  unless  and  until  the  truth 
of  such  inference  is  disproved.8 

"Action"  means  any  judicial  proceeding,  whether  civil 
or  criminal. 

1  Illustration  (a).        8  Illustration  {b).         8  Illustration  (c). 


Chap,  L]  thb  law  or  bvldexcb.  8 

Illustrations. 

(a)  That  there  are  certain  objects  arranged  in  a  certain  order 
in  a  certain  place  is  a  fact. 

That  a  man  heard  or  saw  something  is  a  fact. 

That  a  man  said  certain  words  is  a  fact. 

That  a  man  holds  a  certain  opinion,  has  a  certain  intention, 
acts  in  good  faith  or  fraudulently,  or  uses  a  particular  word 
in  a  particular  sense,  or  is  or  was  at  a  specified  time  conscious 
of  a  particular  sensation,  is  a  fact. 

{b    A  writing  is  a  document. 

Words  printed,  lithographed,  or  photographed,  are  documents. 

A  map  or  plan  is  a  document. 

An  inscription  on  a  metal  plate  or  stone  is  a  document. 

A  caricature  is  a  document. 

(c)  The  production  of  the  record  of  a  judgment  of  a  Court  of 
Record  is  conclusive  proof  that  that  Court  delivered  that 
judgment. 

The  fact  that  a  married  woman  committed  a  theft  in  her  hus- 
band's presence  raises  a  presumption  that  she  acted  under 
his  coercion. 


DIGEST   OF  [PART   I. 


CHAPTER   H. 

OF  FACTS  IN  ISSUE  AND  RELEVANT  TO    THE 
ISSUE. 

Article  2.* 
facts   in  issue   and  facts   relevant   to  the  issue 

may  be  proved. 
Evidence  may  be  given  in  any  action  of  the  existence  or 
non-existence  of  any  fact  in  issue,  and  of  any  fact  relevant 
to  any  fact  in  issue,  and  of  no  others. 

The  judge  may  exclude  evidence  of  facts  which,  though 
relevant  to  the  issue,  appear  to  him  too  remote  to  be  ma- 
terial under  all  the  circumstances  of  the  case. 

The  expression  "facts  in  issue"  means — 

(1)  All  facts  which,  by  the  form  of  the  pleadings  in  any 
action,  are  affirmed  on  one  side  and  denied  on  the  other: 

(2)  In  actions  in  which  there  are  no  pleading,  or  in 
which  the  form  of  the  pleadings  is  such  that  distinct  issues 
are  not  joined  between  the  parties,  all  facts  from  the  estab- 
lishment of  which  the  existence,  non-existence,  nature,  or 
extent  of  amT  right,  liability,  or  disability  asserted  or  denied 
in  any  such  case  would  by  law  follow. 


•  See  Note  II. 


Chap.  II. ]  the  law  of  evidence.  5 

The  relevancy  of  facts  to  facts  in  issue,  depends  on  the 
principles   and   rules   stated   in  chapters   ii.,  iii.,  iv.,  v., 

and  vL 

Illustration. 

(a)  A  is  indicted  for  the  murder  of  B,  and  pleads  not  guilty. 

The  following  facts  may  be  in  issue  : — The  fact  that  A  killed  B ; 
the  fact  that  at  the  time  when  A  killed  B  he  was  prevented 
by  disease  from  knowing  right  from  wrong;  the  fact  that  A 
had  received  from  B  such  provocation  as  would  reduce  his 
offence  to  manslaughter. 

The  following  facts  would  be  relevant  to  the  issue  : — The  f;  ct 
that  he  had  a  motive  for  murdering  B;  the  fact  that  A  admit- 
ted that  he  had  murdered  B  ;  the  fact  that  A  was,  after  B's 
death,  in  possession  of  property  taken  from  B's  person. 

Article  3. 
relevancy  of  facts   forming  part  of  the  same 

transaction  as  facts  in  issue. 
Facts  which,  though  not  in  issue,  are  so  connected  with 
a  fact  in  issue  as  to  form  part  of  the  same  transaction  or 
subject-matter,  are  relevant  to  the  fact  with  which  they 
are  so  connected. 

Illustrations. 
(a)  The  question  is,  whether  A  murdered  B  by  shooting  him. 
The  fact  that  a  witness  in  the  room  with  B,  just  before  he  was 
shot,  saw  a  man  with  a  gun  in  his  hand  pass  a  window 
opening  into  the  room  in  which  B  was  shot,  and  thereupon 
exclaimed,  "  That's  the  butcher  1"  (a  name  by  which  A  was 
known)  is  relevant.1 


1  R    v.  Foulkes,  per  Campbell,  C.  J.,   Leicester  Spriw  As- 
sizes, 1856.     Ex  relatione  O'Brien,  Serjt. 


6  a  digest  or  [Part  L 

(&)  The  question  is,  whether  A  committed  manslaughter  on  B 
by  carelessly  driving  over  him. 

A  statement  made  by  B  as  to  the  cause  of  the  accident,  as  soon 
as  he  was  picked  up,  is  a  relevant  fact,  though  it  may  not  be 
admissible  as  a  dying  declaration.1 

(c)  The  question  is,  whether  A,  the  owner  of  one  side  of  a  river, 
owns  the  entire  bed  of  it,  or  only  half  the  bed,  at  a  particular 
spot.  The  fact  that  he  owns  the  entire  bed  a  little  lower 
down  the  river  is  relevant.2 

{d)  The  question  is,  whether  a  slip  of  land  by  the  roadside  be- 
longs to  the  lord  of  the  manor  or  to  the  owner  of  the  adjacent 
land.  The  fact  that  the  lord  of  the  manor  owned  other  parts 
of  the  slip  of  land  by  the  side  of  the  same  road  is  relevant.8 

Article  4.* 
acts  of  conspirators. 
"When  two  or  more  persons  conspire  together  to  commit 
any  offence  or  actionable  wrong,  everything  said,  done,  or 
written  by  any  one  of  them  in  the  execution  or  furtherance 
of  their  common  purpose,  is  deemed  to  be  so  said,  done, 
or  written  by  every  one,  and  is  a  relevant  fact  as  against 
each  of  them  ;  but  relations  of  measures  taken  in  the  execu- 
tion or  furtherance  of  any  such  common  purpose  are  not 
relevant  as  such  as  against  any  conspirators,  except  those 


*See  Note  III. 

»  R.  v.  Foster,  6  C.  &  P.  325.  The  Judges  (Park,  J  ,  Gur- 
ney,  B.,  and  Patteson.  J.)  who  decided  this  case  referred  to 
Aveson  v.  Lord  Klnnaird,  6  Ea.  193.  See  article  11,  Illustra- 
tion (w). 

2  Jones  v.   Williams,  2  M.  &  W.  826. 

8  Doe  v.  Kemp,  7  Bing.  332  ;  2  Bing.  N.  C.  102. 


Chap.  II.]  the  law  of  evidence.  7 

who  make   them,  or  are   present  when   they  are  made. 

Evidence  of  acts  relevant  under  this   article  may  not  be 

given  until  the  judge  is  satisfied  that,   apart  from  them, 

there  are  prima  facie  grounds  for  believing  in  the  existence 

of  the  conspiracy. 

Illustrations. 

(a)  The  question  is,  whether  A  and  B  conspired  together  to 
cause  certain  imported  goods  to  be  passed  through  the  cus 
torn-house  on  payment  of  too  small  an  amount  of  duty. 

The  fact  that  A  made  in  a  book  a  false  entry,  necessary  to  be 
made  in  that  book  in  order  to  carry  out  the  fraud,  is  a  rele- 
vant fact  as  against  B. 

The  fact  that  A  made  an  entry  on  the  counterfoil  of  his  cheque- 
book showing  that  he  had  shared  the  proceeds  of  the  fraud 
with  B,  is  not  a  relevant  fact  as  against  B.1 

(3)  The  question  is,  whether  A  committed  high  treason  by  im- 
agining the  king's  death  ;  the  overt  act  charged  is  that  he 
presided  over  an  organized  political  agitation  calculated  to 
produce  a  rebellion,  and  directed  by  a  central  committee 
through  local  committees. 

The  facts  that  meetings  were  held,  speeches  delivered,  and 
papers  circulated  in  different  parts  of  the  country,  in  a  man- 
ner likely  to  produce  rebellion  by,  and  by  the  direction  of 
persons  shown  to  have  acted  in  concert  with  A,  are  relevant 
facts  as  against  A,  though  he  was  not  present  at  those  trans- 
actions and  took  no  part  in  them  personally. 

An  account  given  by  one  of  the  conspirators  in  a  letter  to  a 
friend,  of  his  own  proceedings  in  the  matter,  not  intended  to 
further  the  common  object,  and  not  brought  to  A's  notice,  is 
not  relevant  as  against  A.a 


1  R.  v   Blake,  6  Q.  B.  137-40. 

*  R.  v.  Hardy,  24  S.  T.  passim,  but  see  particularly  451-S. 


8  a  digest  or  [Fart  i. 

Article  5.* 

TITLE. 

When  the  existence  of  any  right  of  property,  or  of  anj 
right  over  property  is  in  question,  every  fact  which  con- 
stitutes the  title  of  the  person  claiming  the  right,  or  which 
shows  that  he,  or  any  person  through  whom  he  claims,  was 
in  possession  of  the  property,  and  every  fact  which  consti- 
tutes an  exercise  of  the  right,  or  which  shows  that  its 
exercise  was  disputed,  or  which  is  inconsistent  with  its 
existence  or  renders  its  existence  improbable,  is  relevant 

Illustrations. 

(d)  The  question  is,  whether  A  has  a  right  of  fishery  in  a  river. 

An  ancient  inquisitio  post  mortem  finding  the  existence  of  a 
right  of  fishery  in  A's  ancestors,  licences  to  fish  granted  bj 
his  ancestors,  and  the  fact  that  the  licensees  fished  undr 
them,  are  relevant.1 

\V)  The  question  is.  whether  A  owns  land. 

The  fact  that  A's  ancestors  granted  leases  of  it  is  relevant.2 

(  )  The  question  is,  whether  there  is  a  public  right  of  way  over 
A's  land. 

The  facts  that  persons  were  in  the  habit  of  using  the  way,  that 
they  were  turned  back,  that  the  road  was  stopped  up,  that 
the  road  was  repaired  at  the  public  expense,  and  A's  title- 
deeds  showing  that  for  a  length  of  time,  reaching  beyond  the 


*  See  Note  IV. 

1  Rogers  v.  Allen,  1  Camp.  309. 

'  Doe  v.  Pulman,  3  Q.  B.  622,  623,  626  (citing  Duke  of  Bed. 
ford  v.  Lopes).  The  document  produced  to  show  the  lease 
was  a  counterpart  signed  by  the  lessee.     See  post,  art.  64 


Chap.  IL]  the  law  of  evidence.  9 

time  when  the  road  was  said  to  have  been  used,  no  one  had 
power  to  dedicate  it  to  4.he  public,  are  all  relevant.1 

Article  6. 


When  the  existence  of  any  custom  is  in  question,  every 
fact  is  relevant  which  shows  how,  in  particular  instances, 
the  custom  was  understood  and  acted  upon  by  the  parties 
then  interested. 

Illustrations, 
(a)  The   question   is,   whether,   by   the   custom   of  borough- 
English  as  prevailing  in  the  manor  of  C,  A  is  heir  to  B. 
The  fact  that  other  persons,  being  tenants  of  the  manor,  in- 
herited from  ancestors  standing  in  the  same  or  similar  rela- 
tions to  them  as  that  in  which  A  stood  to  B,  is  relevant.8 

Article  7.* 

motive,  preparation.  subsequent  conduct, 

explanatory  statements. 

"When  any  act  done  by  any  person  is  a  fact  in  issue,  or  is 

relevant  to  the  issue,  the  following  facts  are  relevant,  that 

is  to  say — 

any  fact  which  supplies  a  motive  for  such  an  act,  or 
which  constitutes  preparation  for  it  ;s 


*  See  Note  V. 
1  Common  practice.     As  to  the  title-deeds,  Brough  v.  Lord 
Scarsdale,  Derby  Summer  Assizes,  1S65. 
1  Muggleton  v.  Burnett,  1  K.  &  N.  2S2. 
3  Illustrations  (a)  and  (i). 


10  X.  digest  of  [Part  L 

any  suosequent  conduct  of  such  person  which  appears  to 
have  been  influenced  by  any  such  act,  and  any  act  done  in 
consequence  of  any  such  act  by  or  by  the  authority  of  that 
person  ;l 

all  statements  made  by  or  to  that  person  accompanying 
and  explaining  any  such  act.* 

The  conduct  of  a  person  against  whom  an  offence  has 
been  committed,  and  in  particular  the  fact  that  he  made  a 
complaint  soon  after  the  offence  to  persons  to  whom  he 
would  naturally  complain,  are  relevant;  but  the  terms  of 
the  complaint  itself  seem  not  to  be  relevant.3 

When  a  person's  conduct  is  in  issue  or  is  relevant  to  the 
issue,  statements  made  in  his  presence  and  hearing  by 
which  his  conduct  is  likely  to  have  been  affected,  are  re- 
levant facts.4 

Illustrations. 

(a)  The  question  is,  whether  A  murdered  B. 

The  facts  that,  at  the  instigation  of  A,  B  murdered  C  twenty- 
five  years  before  B's  murder,  and  that  A  at  or  before  that 
time  used  expressions  showing  malice  against  C.  are  relevant 
as  showing  a  motive  on  A's  part  to  murder  B.6 

{6)  The  question  is,  whether  A  committed  a  crime. 


»  Illustrations  (c)  (d)  and  (*) 

*  Illustrations  (/)  and  {g).  Other  statements  made  by  such 
persons  are  relevant  or  not  according  to  the  rules  as  to  state- 
ments hereinafter  contained.     See  ch.  iv.  post. 

3  Illustration  (A). 

*  /?.  v.  Edmunds,  6  C.  &  P.  164  ;  Neil  v.  Jakle,  2  C  &  K.  709. 
»  R.  v.  Clewes.  4  C   &  P.  221. 


Chap.  II.]  the  law  of  evidence.  11 

The  fact  that  A  procured  the  instruments  with  which  the  crime 
was  committed  is  relevant.1 

(c)  A  is  accused  of  a  crime. 

The  facts  that,  either  before,  or  at  the  time  of,  or  after  the  al- 
leged crime,  A  caused  circumstances  to  exist  tending  to  give 
to  the  facts  of  the  case  an  appearance  favorable  to  himself, 
or  that  he  destroyed  or  concealed  things  or  papers,  or  pre- 
vented the  presence  or  procured  the  absence  of  persons  who 
might  have  been  witnesses,  or  suborned  persons  to  give  false 
evidence,  are  relevant.2 

(d)  The  question  is,  whether  A  committed  a  crime. 

The  facts  that,  after  the  commission  of  the  alleged  crime,  he 
absconded,  or  was  in  possession  of  property  or  the  proceeds 
of  property  acquired  by  the  crime,  or  attempted  to  conceal 
things  which  were  or  might  have  been  used  in  committing  it, 
and  the  manner  in  which  he  conducted  himself  when  state- 
ments on  the  subject  were  made  in  his  presence  and  hearing, 
are  relevant.8 

{e)  The  question  is,  whether  A  suffered  damage  in  a  railway 
accident. 

The  fact  that  A  conspired  with  B,  C  and  D  to  suborn  false  wit- 
nesses in  support  of  his  case  is  relevant4  as  conduct  subse- 
quent to  a  fact  in  issue  tending  to  show  that  it  had  not  hap- 
pened. 

(/)  The  question  is,  whether  A  committed  an  act  of  bank- 
ruptcy, by  departing  the  realm  with  intent  to  defraud  his 
creditors. 


1  P.  v.  Palmer  {passim). 

»  P.  v.  Patch,  Wilis  Circ.  Ev.  230;    P.  v.   Palmer,  ub.  sup. 
(passim). 

*  Common  Practice. 

*  Moriarty  v.  London,  Chatham  and  Dover  Co.,  L.  R.  5  Q. 
B.  314. 


12  A   DIGEST    OF  [FART   L 

Letters  written  during  his  absence  from  the  realm,  indicating 
such  an  intention,  are  relevant  facts  l 

(g)  The  question  is,  whether  A  was  sane.  The  fact  that  he 
acted  upon  a  letter  received  by  him  is  relevant,  as  conduct 
forming  part  of  the  issue.  The  contents  of  the  letter  so  acted 
upon  are  relevant,  as  statements  accompanying  and  explain- 
ing such  conduct.3 

(A)  The  question  is,  whether  A  was  ravished. 

The  fact  that,  shortly  after  the  alleged  rape,  she  made  a  com- 
plaint relating  to  the  crime,  and  the  circumstances  under 
which  it  was  made,  are  relevant,  but  not  (it  seems)  the  terms 
of  the  complaint  itself.* 

The  fact  that,  without  making  a  complaint,  she  said  that  she 
had  been  ravished,  is  not  relevant  as  conduct  under  this  arti- 
cle, though  it  may  be  relevant  {e.g.)  as  a  dying  declaration 
under  article  26. 

Article  8. 
facts  necessary  to  explain  or  introduce  relevant 

FACTS. 

Facts  necessary  to  be  known  to  explain  or  introduce  a 
fact  in  issue  or  relevant  fact,  or  which  support  or  rebut  an 
inference  suggested  by  a  fact  in  issue  or  relevant  fact,  or 
which  establish  the  identity  of  any  thing  or  person  whose 
identity  is  in  issue  or  relevant  to  the  issue,  or  which  fix  the 
time  or  place  at  which  any  fact  in  issue  or  relevant  fact 


1  Rawson  v.  Haigh,  2  Bing.   99 ;    Bateman  v.  Bailey,  5  T. 
R.  512. 

2  Wright  v.  Doe  d.   Tatham,  1  A.   &  E.,  324-5  (per  Den- 
man,  C.  J.). 

»  R.  v.   Walker,  2M.4R.  212.     See  Note  V.     . 


CHAJ     II.]  THE    LAW   OF   EVIDENCE.  13 

happi  aed,  or  which  show  that  any  document  produced  is 
genuine  or  otherwise,  or  which  show  the  relation  of  the 
parties  by  whom  any  such  fact  was  transacted,  or  which 
afforded  an  opportunity  for  its  occurrence  or  transaction, 
or  which  are  necessary  to  be  known  in  order  to  show  the 
relevancy  of  other  facts,  are  relevant  in  so  far  as  they  are 
necessary  for  those  purposes  respectively. 

Illustrations. 

(a)  The  question  is,  whether  a  writing  published  by  A  of  B  is 
libellous  or  not. 

The  position  and  relations  of  the  parties  at  the  time  when  the 
libel  was  published  may  be  relevant  facts  as  introductory  to 
the  facts  in  i«sue. 

The  particulars  of  a  dispute  between  A  and  B  about  a  matter 
unconnected  with  the  alleged  libel  are  not  relevant  under 
this  ar'icle.  though  the  fact  that  there  was  a  dispute  may  be 
relevant  if  it  affected  the  relations  between  A  and  B.1 

(1)  The  question  is,  whether  A  wrote  an  anonymous  letter, 
threatening  B,  and  requiring  B  to  meet  the  writer  at  a  cer- 
tain time  and  place  to  satisfy  his  demands. 

The  fact  that  A  met  B  at  that  time  and  place  is  relevant,  as 
conduct  subsequent  to  and  affected  by  a  fact  in  issue. 

The  fact  that  A  had  a' reason,  unconnected  with  the  letter,  for 
being  at  that  time  at  that  place,  is  relevant,  as  rebutting  the 
inference  suggested  by  his  presence.2 

(r)  A  is  tried  for  a  riot,  and  is  proved  to  have  marched  at  the 
head  of  a  mob.  The  cries  of  the  mob  are  relevant,  as  ex- 
planatory of  the  nature  of  the  transaction.8 


1  Common  practice. 

2  R.  v.  Barnard,  19  St.  Tri.  S15.  etc. 

9  R.  v.  Lord  George  Gordon,  21  St.  Tri.  520. 


14  a  digest  of  [Part  L 

(d)  The  question  is,  whether  a  deed  was  forged.  It  purports 
to  be  made  in  the  reign  of  Philip  and  Mary,  and  enumerates 
King  Philip's  titles. 

The  fact  that  at  the  alleged  date  of  the  deed,  Acts  of  State  and 
other  records  were  drawn  with  a  different  set  of  titles,  is  rel- 
evant.1 

(e)  The  question  is,  whether  A  poisoned  B.  Habits  of  B 
known  to  A,  which  would  afford  A  an  opportunity  to  admin- 
ister the  poison,  are  relevant  facts.8 

{/)  The  question  is,  whether  A  made  a  will  under  undue  in- 
fluence. His  way  of  life  and  relations  with  the  persons  said 
to  have  influenced  him  unduly,  are  relevant  facts.* 

Article  9.* 
general  definition  of  relevancy. 

Facts,  whether  in  issue  or  not,  are  relevant  to  each  other 
when  one  is,  or  probably  may  be,  or  probably  may  have 
been — 

the  cause  of  the  other; 

the  effect  of  the  other; 

an  effect  of  the  same  cause; 

a  cause  of  the  same  effect: 
or  when  the  one  shows  that  the  other  must  or  cannot  have 
occurred,  or  probably  does  or  did  exist,  or  not; 

or  that  any  fact  does  or  did  exist,  or  not,  which  in  the 


*  See  Note  VI 
1   Lady  ivy's  Case,  10  St.  Tri.  615 

*  R.  v.  Donellan.   Wills   Circ.   Ev.   192;    and  see  my  'Gen- 
eral View  of  the  Criminal  Law,'  p.  838.  etc. 

•  Boyse  v.  Rossborough,  6  H.  L.  C.  42-5*5 


Chap,  n.]  the  law  of  evidence.  16 

common  course  of  events  would   either  have   caused  or 
have  been  caused  by  the  other; 

provided  that  such  facts  do  not  fall  within  the  exclusive 
rules  contained  in  chapters  iii.,  iv.,  v.,  vi.;  or  that  they  do 
fall  within  the  exceptions  to  those  rules  contained  in  those 
chapters. 

Illustrations. 

(a)  A's  death  is  caused  by  his  taking  poison.  The  administra- 
tion of  the  poison  is  relevant  to  A's  death  as  its  cause.  A's 
death  is  relevant  to  the  poisoning  as  its  effect. 

(b)  A  and  B  each  eat  from  the  same  dish  and  each  exhibit 
symptoms  of  the  same  poison.  A's  symptoms  and  B's 
symptoms  are  relevant  to  each  other  as  effects  of  the  same 
cause. 

(c)  The  question  is,  whether  A  died  of  the  effects  of  a  railway 
accident. 

Facts  tending  to  show  that  his  death  was  caused  by  inflamma 
tion  of  the  membranes  of  the  brain,  which  probably  might 
be  caused  by  the  accident ;  and  facts  tending  to  show  that  his 
death  was  caused  by  typhoid  fever,  which  would  have  noth- 
ing to  do  with  the  accident,  are  relevant  to  each  other  as 
possible  causes  of  the  same  effect — A's  death. 

(d)  A  is  charged  with  committing  a  crime  in  London  on  a 
given  day.  The  fact  that  on  that  day  he  was  at  Calcutta  is 
relevant,  as  proving  that  he  could  not  have  committed 
the  crime. 

(e)  The  question  is  whether  A  committed  a  crime. 

The  circumstances  are  such  that  it  must  have  been  committed 
either  by  A,  B,  or  C.  Every  fact  which  shows  this,  and  every 
fact  which  shows  that  neither  B  nor  C  committed  it,  or  that 
either  of  them  did  or  might  have  committed  it,  is  relevant. 

(/)  B,  a  person  in  possession  of  a  large  sum  of  money,  i& 
murdered   and  robbed.     The  question  is,  whether  A  mur- 


16  A   DIGEST    OF  [PART    I. 

dered  him.  The  fact  that  after  the  murder  A  was  or  was 
not  possessed  of  a  sum  of  money  unaccounted  for  is  relevant, 
as  showing  the  existence  or  the  absence  of  a  fact  which  in 
the  common  course  of  events  would  be  caused  by  A's  com- 
mitting the  murder.  A's  knowledge  that  B  was  in  possession 
of  the  money  would  be  relevant  as  a  fact  which,  in  the  ordi- 
nary course  of  events,  might  cause  or  be  one  of  the  causes 
of  the  murder. 
(g)  A  is  murdered  in  his  own  house  at  night.  The  absence  of 
marks  of  violence  to  the  house  is  relevant  to  the  question 
whether  the  murder  was  committed  by  a  servant,  because 
it  shows  the  absence  of  an  effect  which  would  have  been 
caused  by  its  being  committed  by  a  stranger. 


CHAP.    III. J  THE   LAW    OF   EVIDENCE. 


CHAPTER  ILL 

OCCURRENCES  SIMILAR  TO  BUT  UNCON- 
NECTED WITH  THE  FACTS  IN  ISSUE,  IRREL- 
EVANT EXCEPT  IN  CERTAIN  CASES. 

Article  10.* 
similar  but  unconnected  facts. 
The  occurrence  of  a  fact  similar  to,  but  not  specifically 
connected  in  any  of  the  ways  hereinbefore  mentioned  with, 
the  facts  in  issue  is  not  to  be  regarded  as  relevant  to  the 
existence  of  such  facts  except  in  the  cases  specially 
excepted  in  this  chapter. 

Illustrations. 

(a)  The  question  is,  whether  A  committed  a  crime. 

The  fact   that  he  formerly  committed    another  crime  of  the 

same   sort,  and  had  a  tendency  to  commit  such  crimes,  is 

irrelevant.1 
(3)  The  question  is,  whether  A,   a  brewer,  sold  good  beer  to 

B,  a  publican.     The  fact  that  A  sold  good  beer  to  C,  D  and  E, 


♦See  Note  VII. 
1  R.  v.    Cole,   1    Phi.    Ev.    508  (said  to  have  been  decided 
by  all  the  Judges  in  Mich.  Term,  1810). 

B 


18  A   DIGEST    OF  [PART   I. 

other  publicans,  is   irrelevant1  (unless   it   is   shown   that  the 
beer  sold  to  all  is  of  the  same  brewing).2 


Article  11.* 
acts  showing  intention,  good  faith,  &q. 

When  the  intention,  knowledge,  good  faith,  malice,  or 
any  other  state  of  mind  of  any  person,  or  when  any  bod- 
ily feeling  or  state  of  the  body  of  any  person  is  a  fact  in 
issue  or  relevant  to  the  issue,  all  things  done  or  said  by  any 
such  person  which  express  or  show  the  existence  of  any 
such  state  of  mind  or  body,  in  reference  to  the  particular 
matter  in  question,  are  relevant,  though  they  may  not  have 
been  done  or  said  on  the  occasion  when  the  facts  in  issue 
happened. 

Statements  made  to  any  such  person,  which  would  cause 
or  prevent  the  existence  of  any  such  state  of  mind,  are 
relevant  facts. 

3  Where  proceedings  are  taken  against  any  person  for 
having  received  goods,  knowing  them  to  be  stolen,  or  for 
having  in  his  possession  stolen  property,  the  fact  that  there 
was  found  in  the  possession  of  such  person  other  propeity 


*See  Note  VII. 

1  Holcombe  v.  Hewson,  2  Camp    391. 

*  See  Illustrations  to  article  3. 

8  34  A  35  Vict.  c.  112.  s  19  (language  slighCy  modified). 
This  enactment  overrules  R.  v.  Oidy,  2  Den.  C.  C  264,  and 
practically  supersedes  R.  v.  Dunn,  1  Moo.  C.  C.  150,  and  R. 
v.  Davis,  6  C.  &  P.  177.     See  illustrations. 


Chap.  EX]  the  law  of  evidence.  19 

stolen  within  the  preceding  period  of  twelve  months,  is 
relevant  to  the  question  whether  he  knew  the  property  to 
be  stolen  which  forms  the  subject  of  the  proceeding  taken 
against  him. 

If,  in  the  case  of  such  proceedings  as  aforesaid,  evidence 
has  been  given  that  the  stolen  property  has  been  found  in 
the  possession  of  the  person  proceeded  against,  the  fact 
that  such  person  has,  within  five  years  immediately  prece- 
ding, been  convicted  of  any  offence  involving  fraud  or 
dishonesty,  is  relevant  for  the  purpose  of  proving  that  the 
person  accused  knew  the  property  which  was  proved  to  be 
in  his  possession  o  have  been  stolen,  and  may  be  proved 
at  any  stage  of  the  proceedings :  provided  that  not  less 
than  seven  days'  notice  in  writing  has  been  given  to  the 
person  accused  that  proof  is  intended  to  be  given  of  such 
previous  conviction. 

Illustrations . 

(a)  A  is  charged  with  receiving  two  pieces  of  silk  from  B, 
knowing  them  to  have  been  stolen  from  C. 

The  facts  that  A  received  from  B  many  other  articles  stolen  by 
him  from  C  in  the  course  of  several  months,  and  that  A 
pledged  all  of  them,  are  relevant  to  the  fact  that  A  knew 
that  the  two  pieces  of  silk  were  stolen  by  B  from  C.1 

(5)  A  is  charged  with  uttering,  on  the  12th  December  1854,  a 
counterfeit  crown  piece,  knowing  it  to  be  counterfeit. 

The  facts  that  A  uttered  another  counterfeit  crown  piece  on 
the  11th  December   1S54,  and  a  counterfeit  shilling  on  the 


1   Dunn's  case,  1  Moo.  C.  C    146. 


20  A   DIGEST    OF  [PART   I. 

4th   Unuary,  1855.  are  relevant  to  show  A's  knowledge  that 
the  crown  piece  uttered  on  the  12th  was  counterfeit. x 

(c)  A  is  charged  with  attempting  to  obtain  money  by  false 
pretenses,  by  trying  to  pledge  to  B  a  worthless  ring  as  a  dia- 
mond ring. 

The  facts  that  two  days  before,  A  tried,  on  two  separate  occa- 
sions, to  obtain  money  from  C  and  D  respectively,  by  a 
similar  assertion  as  to  the  same  or  a  similar  ring,  and  that 
on  another  occasion  on  the  same  day  he  obtained  a  sum  of 
money  from  E  by  pledging,  as  a  gold  chain,  a  chain  which 
was  only  gilt,  are  relevant,  as  showing  his  knowledge  of  the 
quality  of  the  ring.* 

(d)  A  is  charged  with  obtaining  money  from  B  by  falsely 
pretending  that  Z  had  authorized  him  to  do  so. 

The  fact  that  on  a  different  occasion  A  obtained  money  from 
C  by  a  similar  false  pretense,  is  irrelevant,3  as  A's  knowledge 
that  he  had  no  authority  from  Z  on  the  second  occasion  had 
no  connection  with  his  knowledge  that  he  had  no  authority 
from  Z  on  the  first  occasion. 

(e)  A  sues  B  for  damage  done  by  a  dog  of  B's,  which  B  knew 
to  be  ferocious. 

The  facts  that  the  dog  had  previously  bitten  X,  Y,  and  Z,  and 
that  they  had  made  complaints  to  B,  are  relevant.4 

(/)  The  question  is,  whether  A,  the  acceptor  of  a  bill  of 
exchange,  knew  that  the  name  of  the  payee  was  fictitious. 

The  fact  that  A  had  accepted  other  bills  drawn  in  the  same 
manner  before  they  could  have  been  transmitted  to  him  by 
the  payee,  if  the  payee  had  been  a  real  person,  is  relevant,  as 


1  R.  v.  Forster,  Dear.  456. 

1   R.  v.  Francis,  L.  R.  2  C.  C.  R.  128 

3  R.  v.  Holt,  Bell  C.  C.  280 ;  and  see  R.  v.  Francis,  ub.  sup. 
p.  130. 

4  See  cases  collected  in  Roscoe's  Nisi  Prius,  789. 


Chap.  ID.J  the  law  of  evidence.  21 

showing  that  A  knew  that  the  payee  was  a  fictitious  person.1 

tg)  A  sues  B  for  a  malicious  libel.  Defamatory  statements 
made  by  R  regarding  A  for  ten  years  before  those  in  respect 
of  which  the  action  is  brought,  are  relevant  to  show  malice.2 
n)  A  is  sued  by  B  for  fraudulently  representing  to  B  that  C 
was  solvent,  whereby  B,  being  induced  to  trust  C,  who  was 
insolvent,  suffered  loss. 

The  fact  that,  at  the  time  when  A  represented  C  to  be  solvent, 
C  was  to  A's  knowledge  supposed  to  be  solvent  by  his  neigh- 
bors and  by  persons  dealing  with  him,  is  relevant,  as  show- 
ing that  A  made  the  representation  in  good  faith.3 

(i)  A  is  sued  by  B  for  the  price  of  work  done  by  B,  by  the 
order  of  C,  a  contractor,  upon  a  house,  of  which  A  is  owner. 
A's  defence  is  that  B's  contract  was  with  C. 

The  fact  that  A  paid  C  for  the  work  in  question  is  relevant,  as 
proving  that  A  did,  in  good  faith,  make  over  to  C  the  man- 
agement of  the  work  in  question,  so  that  C  was  in  a  position  to 
contract  with  B  on  C's  own  account,  and  not  as  agent  for  A.4 

(/)  A  is  accused  of  stealing  property  which  he  had  found,  and 
the  question  is,  whether  he  meant  to  steal  it  when  he  took 
possession  of  it. 
The  fact  that  public  notice  of  the  loss  of  the  property  had  been 
given  in  the  place  where  A  was,  and  in  such  a  manner  that  A 
knew  or  probably  might  have  known  of  it,  is  relevant,  as 
showing  that  A  did  not,  when  he  took  possession  of  it,  in 
good  faith  believe  that  the  real  owner  of  the  property  could 
not  be  found.5 


1   Gibson  v.  Hunter.  2  H.  Bl.  288. 

*  Barrett  v.  Long,  3  Ho.  Lo    Ca.  395   414. 

s  Sheen  v.  Bumpstead.   2  H.  &  C.  193. 

4  Gerish  v.  Chartier,  1  C.  B.  13. 

5  This  illustration  is  adapted  from  Preston's  Case,  2  Den.  C. 
C.  358  ;  but  the  misdirection  given  in  that  case  is  set  right.  As 
to  the  relevancy  of  the  fact,  see  in  particular  Lord  Campbell's 
remark  on  p.  859. 


22  A   DIGEST    OF  [PART   L 

(£)  The  question  is,  whether  A  is  entitled  to  damages  from  B, 

the  seducer  of  A's  wife. 
The  fact  that  A's  wife  wrote  affectionate  letters  to  A  before  the 

adultery  was  committed,  is  relevant,  as  showing  the  terms  on 

which  they  lived  and  the  damage  which  A  sustained.1 
(/)  The  question  is,  whether  A's  death  was  caused  by  poison. 
Statements  made  by  A  before  his  illness  as  to  his  state  of  health, 

and  during  his  illness  as  to  his  symptoms,  are  relevant  facts.' 
(m)  The  question  is,  what  was  the   state    of  A's  health  at  the 

time  when  an  insurance  on  her  life  was  effected  by  B. 
Statements  made  by  A  as  to  the  state  of  her  health  at  or  neai 

the  time  in  question  are  relevant  facts.8 
(n)  The  question  is,  whether  A,  the  captain   of  a  ship,  knew 

tha'.  a  port  was  blockaded. 
The  fact  that  the  blockade  was   notif.ed  in  the  Gazette  is  rele 

vant.4 

Article  12.* 

facts  showing  system. 

"W"hen  there  is  a  question  whether  an  act  was  accidental 

or  intentional,  the  fact  that  such  act  f.rmed  part  of  a 

series  of  similar  occurrences,  in  each  of  which  the  person 

doing  the  act  was  concerned,  is  relevant. 

Illustrations, 
(a)  A  is  accused  of  setting  fire  to  his  house  in  order  to  obtain 
money  for  which  it  is  insured. 


*  See  Note  VII. 
1    Trelawney  v.  Coleman,  1  B.  &  A    90. 

*  R.  v.  Palmer.     See  my  'Gen.  View  of  Crim.  Law,'  p.  863, 
877  (evidence  of  Dr.  Savage  and  Mr.  Stephens). 

5  Aveson  v.  Lord  Kinnaird,  6  Ea.  188. 

*  Harratt  v.    Wise,  9  B    &  C.  712. 


Chap.  UI.J  the  law  of  evidence.  23 

The  facts  that  A  had  previously  lived  in  two  other  houses  suc- 
cessively, each  of  which  he  insured,  in  each  of  which  a  fire 
occurred,  and  that  after  each  of  those  fires  A  received  pay- 
ment from  a  different  insurance  office,  are  relevant,  as  tend- 
ing to  show  that  the  fires  were  not  accidental.1 

{b)  A  is  employed  to  pay  the  wages  of  B's  laborers,  and  it  is 
A's  duty  to  make  entries  in  a  book  showing  the  amounts 
paid  by  him.  He  makes  an  entry  showing  that,  on  a  particu- 
lar occasion,  he  paid  more  than  he  really  did  pay. 

The  question  is,  whether  this  false  entry  was  accidental  or  in- 
tentional. 

The  fact  that  for  a  period  of  two  years  A  made  other  similar 
false  entries  in  the  same  book,  the  false  entry  being  in  each 
case  in  favor  of  A,  is  relevant.5 

(c)  The  question  is,  whether  the  administration  of  poison  to  A, 
by  Z,  his  wife,  in  September,  1848,  was  accidental  or  inten- 
tional. 

The  facts  that  B,  C,  and  D  (A's  three  sons),  had  the  same 
poison  administered  to  them  in  December,  1548,  March, 
1849,  and  April,  1849,  and  that  the  meals  of  all  four  were 
prepared  by  Z,  are  relevant,  though  Z  was  indicted  sepa- 
rately for  murdering  A,  B,  and  C,  and  attempting  to  murder 
D.« 

Article  IS.* 

EXISTENCE  OF  COURSE   OF  BUSINESS  WHEN  RELEVANT. 

"When  there  is  a  question  whether  a  particular  act  was 
done,  the  existence  of  any  course  of  office  or  business,  ac- 
cording to  which  it  naturally  would  have  been  done,  is  a 
relevant  fact. 


*  See  Note  VIII. 
1  R.  v.  Gray,  4  F.  &  F.  1102. 
*  R.  v.  Richardson,  2  F.  &  F.  348. 

»  R.  v.  G>cringt  13  L.  J.  VI.  C.  215  ;  cf.  R.  v.  Gamer,  8  F. 
:  F.  681. 


24  A   DIOttST    OF  [PaKT   L 

"When  there  is  a  question  whether  a  particular  person 
held  a  particular  public  office,  the  fact  that  he  acted  in  that 
office  is  relevant.1 

Illustrations, 
(a)  The  question  is,  whether  a  letter  was  sent  on  a  given  day. 
The  post-mark  upon  it  is  a  relevant  fact.8 

(6)  The  question  is,  whether  a  particular  letter  was  despatched. 
The  facts  that  all  letters   put  in  a  certain   place  were,  in  the 

common  course   of  business,  carried   to  the  post,  and  that 

that  particular  letter  was  put  in  that  place,  are  relevant.* 
(c)  The  question  is,  whether  a  particular  letter  reached  A. 
The  facts  that  it  was   posted  in  due  course  properly  addressed, 

and  was  not  returned  through  the  Dead  Letter  Office,  are 

relevant.4 


1  1  Ph.  Ev.  449;   R.  N.  P.  46;  T.  E.  s.  139. 

2  R.  v.  Canning,  19  S.  T.  370. 

*  Heiherington  v.  Kemp,  4  Camp.  193 ;  and  see  Skilbeck  v. 
Garbett,  7  Q.  B.  846. 

4  Warren  v.  Warren,  1  C.  M.  &  R.  250 ;  Woodcock  v. 
Houldsworth,  16  M.  &  W.  124.  Many  cases  on  this  subject 
are  collected  in  Roscoe's  Nisi  Prius,  pp.  374-5. 


Chap.  IV.]  the  law  of  evidence.  26- 


CHAPTER  IV. 

HEARSAY  IRRELEVANT  EXCEPT  IN  CERTAIN 

CASES. 

Articlk  14.* 

hearsay  irrelevant. 

The  fact  that  a  statement  was  made  by  a  person  not 

called  as  a  witness,  is  not  regarded  as  relevant  to  the  truth 

of  the  matter  asserted  thereby,  under  any  of  the  preceding 

articles,  unless  such  statement  is — 

(a)  An  admission  or  confession  (see  articles  15-24) ;  or 

(b)  A  statement  by  a  deceased  declarant  (see  articles 
25-31);  or 

(c)  Evidence  given  on  a  former  occasion  (see  articles 
32-34);  or 

(d)  A  statement  made  under  special  circumstances  (see 
articles  35-38) ;  or 

(e)  The  judgment  of  a  Court  of  Justice  (see  articles 
39-47). 

In   these   cases  such    statements   are  relevant  or  not, 
according  to  the  provisions  hereinafter  contained. 


*  See  Note  IX. 


26  ▲  digest  or  [Part  L 

Illustration. 
A  declaration  by  a  deceased  attesting  witness  to  a  deed  that  he 


had  forged  it,  is  irrelevant  to  the  question  of  its  validity.1 

Article  15. 
admissions  defined.* 
An  admission  is  a  statement,  oral  or  written,  suggesting 
any  inference  as  to  any  fact  in  issue  or  relevant  fact,  un- 
favorable to  the  conclusion  contended  for  by  the  person  by 
whom  or  on  whose  behalf  the  statement  is  made.  Every 
admission  is  (subject  to  the  rules  hereinafter  stated)  a  rel- 
evant fact  as  against  the  person  to  whom  it  is  unfavorable. 

Article  16.f 

WHO  MAY  MAKE  ADMISSIONS,  AND  WHEN. 

Admissions  may  be  made — 

By  any  party  to  an  action,  whether  substantial  or  nomi- 
nal; 

By  any  person  who,  though  not  a  party  to  the  action  or 
proceeding  has  a  substantial  interest  in  the  event;  oris 
privy  in  law,  in  blood,  or  in  estate  to  any  party  thereto. 

A  statement  made  by  a  party  to  an  action  may  be  an  ad- 
mission whenever  it  is  made,  unless  it  is  made  by  a  per- 
son, suing,  or  sued  in  a  representative  character  only,  in 
which  case  [it  seems]  it  must  be  made  whilst  the  person 
making  it  sustains  that  character. 


*  See  Note  X.  j  3~   Note  XI. 

I  Siobart  v.  Dry  den,   1  M.  h.  W.  615 


Chap.  IV.]  the  law  or  evidence.  27 

A  statement  made  by  a  person  interested  in  an  action, 
or  by  a  privy  to  any  ,party  thereto,  is  not  an  admission  un- 
less it  is  made  during  the  continuance  of  the  interest  which 
entitles  him  to  make  it. 

Illustrations. 

(a)  The  assignee  of  a  bond  sues  the  obligor  in  the  name  of  the 
obligee. 

An  admission  on  the  part  of  the  obligee  that  the  money  due 
has  been  paid  is  relevant  on  behalf  of  the  defendant.1 

(b)  An  admission  by  the  assignee  of  the  bond  in  the  last  illus- 
tration would  also  be  relevant  on  behalf  of  the  defendant. 

(c)  A  statement  made  by  a  person  before  he  becomes  the  as- 
signee of  a  bankrupt  is  not  relevant  as  an  admission  by  him 
in  a  proceeding  by  him  as  such  assignee.2 

(a?)  Statements  made  by  a  person  as  to  a  bill  of  which  he  had 
been  the  holder,  are  not  relevant  as  against  the  holder,  if 
they  are  made  after  he  has  negotiated  the  bill.3 

Article  17.* 
admissions  by  agents  and  persons  jointly  interested 
with  parties. 
Admissions  may  be  made  by  agents  authorized  to  make 
them  either  expressly  or  by  the  conduct  of  their  princi- 
pals; but  a  statement  made  by  an  agent  is  not  an  admis- 
sion merely  because  if  made  by  the  principal  himself  it 
would  have  been  one. 


*See  Note  XII. 

1  See  Moriarty  v.  L.  C.  6*  D.  Co..  L.  R.  5  Q.  B    320. 

*  Fenwicks.  Thornton,  M.  &  M.  51  (by  Lord  Tenderden). 
In  Smith  v.  Morgan,  2  M.  &  R.  257.  Tindai,  C.  J.,  decided  ex- 
actly the  reverse. 

1   Pococi  v.  Billing.  2  Bing.  289. 


28  a  digest  of  [Part  I. 

Partners  and  joint  contractors  are  each  other's  agents  for 
the  purpose  of  making  admissions  against  each  other  ir. 
relation  to  partnership  transactions  or  joint  contracts. 

Barristers  and  solicitors  are  the  agents  of  their  clients 
for  the  purpose  of  making  admissions  whilst  engaged  in 
the  actual  management  of  the  cause,  either  in  court  or  in 
correspondence  relating  thereto ;  but  statements  made  by 
a  barrister  or  solicitor  on  other  occasions  are  not  admis- 
sions merely  because  they  would  be  admissions  if  made  by 
the  client  himself. 

The  fact,  that  two  persons  have  a  common  interest  in  the 
same  subject  matter,  does  not  entitle  them  to  make  admis- 
sions respecting  it  as  against  each  other. 

In  cases  in  which  actions  founded  on  a  simple  contract 
have  been  barred  by  the  statutes  of  limitations,  no  joint 
contractor  or  his  personal  representative  loses  the  benefit 
of  such  statute,  by  reason  only  of  any  written  acknowledg- 
ment or  promise  made  or  sigrted  by  [or  by  the  agent  duly 
authorized  to  make  such  acknowledgment  or  promise  of] 
any  other  or  others  of  them  [or  by  reason  only  of  payment 
of  any  principal,  interest,  or  other  money,  by  any  other  or 
others  of  them].1 

A  principal,  as  such,  is  not  the  agent  of  his  surety  for 
the  purpose  of  making  admissions  as  to  the  matters  for 
which  the  surety  gives  security. 


1  9  Geo.  IV.  c.  14,  s.  1.  The  words  in  the  first  set  of  brack- 
ets were  added  by  19  &  20  Vict.  c.  97  s.  18.  The  words  in  the 
second  set  by  s.  14  of  the  same  act.  The  language  is 
slightly  altered 


Chap.  IV.J  the  law  of  evidence.  29 

Illustrations, 

{a)  The  question  is,  whether  a  parcel,  for  the  loss  of  which  a 
Railway  Company  is  sued,  was  stolen  by  one  of  their  ser- 
vants. Statements  made  by  the  station-master  to  a  police- 
officer,  suggesting  that  the  parcel  had  been  stolen  by  a  porter, 
are  relevant,  as  against  the  railway,  as  admissions  by  an 
agent.1 

(b)  A  allows  his  wife  to  carry  on  the  business  of  his  shop  in 
his  absence.  A  statement  by  her  that  he  owes  money  for 
goods  supplied  to  the  shop  is  relevant  against  him  as  an  ad- 
mission by  an  agent.2 

(c)  A  sends  his  servant  B  to  sell  a  horse.  What  B  says  at  the 
time  of  the  sale,  and  as  part  of  the  contract  of  sale,  is  a  rele- 
vant fact  as  against  A,  but  what  B  says  upon  the  subject  at 
some  different  time  is  not  relevant  as  against  As  (though 
it  might  have  been  relevant  if  said  by  A  himself). 

(d)  The  question  is,  whether  a  ship  remained  at  a  port  for  an 
unreasonable  time.  Letters  from  the  plaintiffs  agent  to  the 
plaintiff  containing  statements  which  would  have  been  ad- 
missions if  made  by  the  plaintiff  himself,  are  irrelevant  as 
against  him.4 

(<?)  A,  B,  and  C  sue  D  as  partners  upon  an  alleged  contract 
respecting  the  shipment  of  bark.  An  admission  by  A  that 
the  bark  was  his  exclusive  property  and  not  the  property  of 
the  firm  is  relevant  as  against  B  and  C.5 
/)  A,  B,  C,  and  D  make  a  joint  and  several  promissory  note. 
Euher  can  make  admissions  about  it  as  against  the  rest.6 


1  Kirkstall  Brewery  v.  Fumess  Ry.,  L.  R.  9  Q.  B.  468. 

*  Clifford  v.  Burton,  1  Bing.  199. 
3  Helyear  v.  Hawke,  5  Esp.  72. 

*  Langhom  v.  Allnutt,  4  Tau.  511. 

*  Lucas  v.  De  La  Cour,  1  M.  &  S.  249. 

*  Whitcomb  v.   Whitting,  1  S.  L.  C.  644. 


30  A   DIGEST    OF  [PART   I. 

(g)  The  question  is,  whether  A  accepted  a  bill  of  exchange. 
A  notice  to  produce  the  bill  signed  by  A's  solicitor  and  de- 
scribing the  bill  as  having  been  accepted  by  A  is  a  relevant 
fact.1 

(h)  The  question  is,  whether  a  debt  to  A,  the  plaintiff,  was  due 
from  B,  the  defendant,  or  from  C.  A  statement  made  by  A's 
solicitor  to  B's  solicitor  in  common  conversation  that  the 
debt  was  due  from  C,  is  not  relevant  against  A.2 

(i)  One  co-part-owner  of  a  snip  can  not,  as  such,  make  admis- 
sions against  another  as  to  the  part  of  the  ship  in  which  they 
have  a  common  interest,  even  if  he  is  co-partner  with  that 
other  as  to  other  parts  of  the  ship.3 

(j  )  A  is  surety  for  B,  a  clerK.  B  being  dismissed  make?  state- 
ments as  to  sums  of  money  which  he  has  received  ai  d  not 
accounted  for.  These  statements  are  not  relevant  as  against 
A,  as  admissions.* 

Article  18.* 
admissions  by  strangers  to  an  action. 
Statements  by  strangers  to  an  action  are  not  relevant  as 
against  the  parties  except  in  the  cases  mentioned  in  this 
article  and  in  article  19.5 

In  actions  against  sheriffs    for  not    executing  process 
against  debtors,  statements  of  the  debtor  admitting  his 


♦See  Note   XIII. 

1  Holt  v.  Squire,  Ry.  &  Mo.  2S2. 

2  Fetch  v.  Lyon,  9  Q.   B.  147. 

3  yaggers  v-   Binning.  1  Star.  64. 

*  Smith  v.  Whippingham.  6  C.  &  P.  78.  See  also  Evans  v. 
Beattie  ,  5  Esp.  26  ;  Bacon  v.  Chesney,  1  Star.  192  ;  Cacrmar- 
then  R.   C.  v.  Manchester  R    C,  L.  R.  8  C.  P.  685. 

6   Coole  v.    Braham.  8  Ex.  183 


Chap.  IV.]  the  law  of  evidence.  31 

debt  to  be  due  to  the  execution  creditor  are  relevant  as 
against  the  sheriff.1 

In  actions  by  the  trustees  of  bankrupts,  an  admission  by 
the  bankrupt  of  the  petitioning  creditor's  debt  if  relevant 
as  against  the  defendant.2 

Article  19.* 
admission"  by  person  referred  to  by  party. 
When  a  party  to  any  action  or  proceeding  expressly 
refers  to  any  other  person  for  information  in  reference  to 
a  matter  in  dispute,  the  statements  of  that  other  person 
may  be  admissions  as  against  the  person  who  refers  to 
him. 

Illustration. 
The  question  is,  whether  A  delivered  goods  to  B.     B  says  "  if 
C"  (the  carman)  "  will  say  that  he   delivered  the  goods,  I 
will  pay  for  them."     C's  answer  may,  as  against   B,  be  an 
admission.8 

Article  20.  f 

ADMISSIONS    MADE   WITHOUT    PREJUDICE. 

No  admission  is  relevant  in  any  civil  action  if  it  is  made 
either  upon  an  express  condition  that  evidence  of  it  is  not 


*  See  Note  XIV.  f  See  Note  XV. 

1  Kemplandv.  Macaulay,  Peake,  95  ;  Williams  v.  Bridges, 
2  Star.  42. 

■  Jarrett  v.  Leonard,  2  M.  &  S.  265  (adapted  to  the  new 
law  of  bankruptcy). 

*  Daniels.  Pitt,  1  Camp.  866.  n. 


82  a  digest  of  [Part  I. 

to  be  given,1  or  under  circumstances  from  which  the  judge 
infers  that  the  parties  agreed  together  that  evidence  of  it 
should  not  be  given,2  or  if  it  was  made  under  duress.3 

Article  21. 
confessions  defined. 
A  confession  is  an  admission  made  at  any  time  by  a 
person  charged  with  a  crime,  and  suggesting  the  inference 
that  he  committed  that  crime.  Confessions,  if  voluntary, 
are  relevant  facts  as  against  the  persons  who  make  them 
only. 

Article  22.* 
confession  caused  by  inducement,  threat,  or  pro- 
MISE,   WHEN  IRRELEVANT   IN   CRIMINAL   PROCEEDING. 

No  confession  is  deemed  to  be  voluntary  if  it  appears  to 
the  judge  to  have  been  caused  by  any  inducement,  threat, 
or  promise,  proceeding  from  a  person  in  authority,  and 
having  reference  to  the  charge  against  the  accused  person, 
whether  addressed  to  him  directly  or  brought  to  his 
knowledge  indirectly ; 

and  if  (in  the  opinion  of  the  judge)  such  inducement, 
threat,  or  promise,  gave  the  accused  person  reasonable 
grounds  for  supposing  that  by  making  a  confession  he 


•See  note  XVI. 
1   Cory  v.  Bretton,  4  C   &  P.  462. 
1  Paddock  v.  Forester,  5  M .  &  G.  918. 
8  Siock/leth  v.  De  Tastet,  per  Ellenborough,  C.  J..  4  Cam.  11. 


Chap.  IV.]        the  law  of  evidence.  33 

would  gain  some  advantage  or  avoid  some  evil  in  reference 
to  the  proceedings  against  him. 

But  a  confession  is  not  involuntary,  only  because  it  ap- 
pears io  have  been  caused  by  the  exhortations  of  a  person 
in  authority  to  make  it  as  a  matter  of  religious  duty,  or 
by  an  inducement  collateral  to  the  proceeding,  or  by  in- 
ducements held  out  by  a  person  not  in  authority. 

The  prosecutor,  officers  of  justice  having  the  prisoner  in 
custody,  magistrates,  and  other  persons  in  similar  posi- 
tions, are  persons  in  authority.  The  master  of  the  prisoner 
is  not  as  such  a  person  in  authority  if  the  crime  of  which 
the  person  making  the  confession  is  accused  was  not  com- 
mitted against  him. 

A  confession  is  deemed  to  be  voluntary  if  (in  the  opin- 
ion of  the  judge)  it  is  shown  to  have  been  made  after  the 
complete  removal  of  the  impression  produced  by  any  in- 
ducement, threat,  or  promise  which  would  otherwise 
render  it  involuntary. 

Facts  discovered  in  consequence  of  confessions  improp- 
erly obtained,  and  so  much  of  such  confessions  as  dis- 
tinctly relate  to  such  facts,  may  be  proved. 

Illustrations. 

(a)  The  question  is,  whether  A  murdered  B. 

A  handbill  issued  by  the  Secretary  of  State,  promising  a  reward 
an  1  pardon  to  any  accomplice  who  would  confess,  is  brought 
to  the  knowledge  of  A,  who,  under  the  influence  of  the  hope 
of  pardon,  makes  a  confession.     This  confession  is  not  vol- 


1  R.  v.  Boswell,  C.  &  Marsh.  534. 


84  A  DIGEST    OF  [PAET  L 

(3)  A  being  charged  with  the  murder  of  B,  the  chaplain  of  the 
gaol  reads  the  Commination  Service  to  A,  and  exhorts  him 
upon  religious  grounds  to  confess  his  sins.  A,  in  conse- 
quence, makes  a  confession.     This  confession  is  voluntary.1 

(c)  The  gaoler  promises  to  allow  A,  who  is  accused  of  a  crime, 
to  see  his  wife,  if  he  will  tell  where  the  property  is.  A  does 
so.     This  is  a  voluntary  confession  2 

(d)  A  is  accused  of  child  murder.  Her  mistress  holds  out  an 
inducement  to  her  to  confess,  and  she  makes  a  confession. 
This  is  a  voluntary  confession,  because  the  mistress  is  not  a 
person  in  authority.5 

(<?)  A  is  accused  of  the  murder  of  B.  C,  a  magistrate,  tries  to 
to  induce  A  to  confess  by  promising  to  try  to  get  him  a  par- 
don if  he  does  so.  The  Secretary  of  State  informs  C  that 
no  pardon  can  be  granted,  and  this  is  communicated  to  A. 
After  that  A  makes  a  statement.  This  is  a  voluntary  con- 
fession * 

(/)  A,  accused  of  burglary,  makes  a  confession  to  a  police- 
man under  an   inducement  which  renders  it  involuntary. 


1  R.  v.  Gilham,  1  Moo.  C.  C.  186.  In  this  case  the  exhorta- 
tion was  that  the  accused  man  should  confess  "  to  God,"  but 
it  seems  from  parts  of  the  case  that  he  was  urged  also  to 
confess  to  man  "  to  repair  any  injury  done  to  the  laws  of  his 
country."  As  is  always  the  case  in  Moody's  reports,  no 
reasons  are  given  for  the  judgment.  The  principle  seems  to 
be  that  a  man  is  not  likely  to  tell  a  falsehood  in  such  cases, 
from  religious  motives.  The  case  is  sometimes  cited  as 
an  authority  for  the  proposition  that  a  clergymap  may  be 
compelled  to  reveal  confessions  made  to  him  professionally. 
It  has  nothing  to  do  with  the  subject. 

•  R.  v.  Lloyd,  6  C.  &  P.  393. 

•  R.  v.  Moore,  2  Den.  C.  C.  522. 

•  R.  v.  Clewes,  4  C.  &  P.  221. 


Chap.  IV.]  the  law  of  evidence.  35 

Part  of  it  is  that  he  (A)  had  thrown  a  lantern  into  a  certain 
pond.  The  fact  that  he  said  so,  and  that  the  lantern  was 
found  in  the  pond  in  consequence,  may  be  proved.1 

Article  23* 
confessions  made  "upon  oath,  &c. 

Evidence  amounting  to  a  confession  may  be  used  as 
such  against  the  person  who  gives  it,  although  it  was  given 
upon  oath,  and  although  the  proceeding  in  which  it  was 
given  had  reference  to  the  same  subject  matter  as  the 
proceeding  in  which  it  is  to  be  proved,  and  although  the 
witness  might  have  refused  to  answer  the  questions  put  to 
him;  but  if,  after  refusing  to  answer  any  such  question, 
the  witness  is  improperly  compelled  to  answer  it,  his  an- 
swer is  not  a  voluntary  confession.2 
Illustrations. 
(a)  The  answers  given  by  a  bankrupt  in  his  examination  may 

be  used  against  him  in  a  prosecution  for  offences  against  the 

law  of  bankruptcy.3 
(J>)  A  is  charged  with  maliciously  wounding  B. 
Before  the  magistrates  A  appeared  as  a  witness  for  C,  who  was 

charged  with  the  same  offence.     A's  deposition  may  be  used 

against  him  on  his  own  trial.* 


*  See  Note  XVII. 

1  R.  v.  Gould,  9  C.  &  P.  364.  This  is  not  consistent,  so  far 
as  the  proof  of  the  words  goes,  with  R.  v.  Warwickshall,  1 
Leach, 263. 

7  R.  v.  Garbett,  1  Den.  236. 

5  R.  v.  Scott,  1  D.  &  B.  47;   R.  v.   WidJop,  L.  R.  2  C   C.  5. 

*  R.  v.  Chidley  fr  Cummins.  8  C.  C.  C.  365. 


digest  oy  [Part  L 


Article  24. 
confession  made  under  a  promise  of  secrecy. 
If  a  confession  is  otherwise  relevant,  it  does  not  become 
irrelevant  merely  because  it  was  made  under  a  promise  of 
secrecy,  or  in  consequence  of  a  deception  practised  on  the 
accused  person  for  the  purpose  of  obtaining  it,  or  when  he 
was  drunk,  or  because  it  was  made  in  answer  to  questions 
which  he  need  not  have  answered,  whatever  may  have 
been  the  form  of  those  questions,  or  because  he  was  not 
warned  that  he  was  not  bound  to  make  such  confession, 
and  that  evidence  of  it  might  be  given  against  him.1 

Article  25. 
statements  by  deceased  persons  when  relevant. 

Statements,  written  or  verbal,  of  facts  in  issue  or  relevant 
to  the  issue  are  relevant,  if  the  person  who  made  the  state- 
ment is  dead,  in  the  cases,  and  on  the  conditions,  specified 
in  articles  26-31,  both  inclusive.  In  each  of  those  articles 
the  word  "declaration"  means  such  a  statement  as  is 
herein  mentioned,  and  the  word  "declarant"  means  a  dead 
person  by  whom  such  a  statement  was  made  in  his  life- 
time. 


1  Cases  collected  and  referred  to  in  1  Ph.  Ev.  420,  and  T.  E. 
s.  804.     See,  too,  Joy,  sections  iii.,  iv.,  v. 


Chap.  IV.J  the  law  of  evidence.  37 

Article  26.* 
dying  declaration  as  to  cause  of  death. 

A  declaration  made  by  the  declarant  as  to  the  cause  of 
his  death,  or  as  to  any  of  the  circumstances  of  the  trans- 
action which  resulted  in  his  death,  is  relevant 

only  in  trials  for  the  murder  or  manslaughter  of  the 
declarant ; 

and  only  when  the  declarant  is  shown,  to  the  satisfaction 
of  the  judge,  to  have  been  in  actual  danger  of  death,  and 
to  have  given  up  all  hope  of  recovery  at  the  time  when  his 
declaration  was  made. 

Such  a  declaration  is  not  irrelevant  merely  because  it 
was  intended  to  be  made  as  a  deposition  before  a  magis- 
trate, but  is  irregular. 

Illustrations. 

(a)  The  question  is,  whether  A  has  murdered  B, 

B  makes  a  statement  to  the  effect  that  A  murdered  him. 

B  at  the  time  of  making  the  statement  has  no  hope  of  recovery, 
though  his  doctor  had  such  hopes,  and  B  lives  ten  days  after 
making  the  statement.     The  statement  is  relevant.1 

B,  at  the  time  of  making  the  statement  (which  is  written  down) 
says  something,  which  is  taken  down  thus  —  "I  make  the 
above  statement  with  the  fear  of  death  before  me,  and  with  no 
hope  of  recovery."     B,  on  the  statement  being  read  over, 


*See  Note  XVIII. 
1  A\  v.  Mosley,  1  Moo.  97. 


88  A   DIGEST    OF  [PART   I. 

corrects  this  to  "  with  no  hope  at  present  of  my  recovery." 
B  died  thirteen  hours  afterwards.  The  statement  is  irrele- 
vant.1 

(b)  The  question  is,  whether  A  administered  drugs  to  a  woman 
with  intent  to  procure  abortion.  The  woman  makes  a 
statement  which  would  have  been  admissible  had  A  been  on 
his  trial  for  murder.     The  statement  is  irrelevant.2 

(c)  The  question  is,  whether  A  murdered  B.  A  dying  declar- 
ation by  C  that  he  (C)   murdered  B  is  irrelevant.8 

(d)  The  question  is  whether  A  murdered  B. 

B  makes  a  statement  before  a  magistrate  on  oath,  and  makes 
her  mark  to  it,  and  the  magistrate  signs  it,  but  not  in  the 
presence  of  A,  so  that  her  statement  was  not  a  deposition 
within  the  statute  then  in  force.  B,  at  the  time  when  the 
statement  was  made,  was  in  a  dying  state,  and  had  no  hope 
of  recovery.     The  statement  is  relevant.* 


Article  27.* 
declarations  made  in  the  course  of  business  or 

professional  duty. 
A  declaration  is  relevant  when  it  was  made  by  the  de- 
clarant in  the  ordinary  course  of  business,  or  in  the  dis- 


*  See  Note  XIX. 
1  R.  v.  Jenkins,  L.  R.  1  C.  C.  R.  137. 

3  R.  v.  Hind,  Bell,  253,  following  R.  v.  Hutchinson,  2  B.  &  C. 
608,  n.  quoted  in  a  note  to  R.  v.  Mead. 

8  Grays  Case,  Ir.  Cir.  Rep.  76. 

4  R.  v.  Woodcock,  1  East,  P.  C.  356.  In  this  case,  Eyre,  C. 
B.,  is  said  to  have  left  to  the  jury  the  question,  whether  the 
deceased  was  not  in  fact  under  the  apprehension  of  death  ?  1 
Leach,  504.  The  case  was  decided  in  1789.  It  is  now  settled 
that  the  question  is  for  the  judge. 


Chap.  IV.]  the  law  of  evidence.  39 

charge  of  professional  duty,  at  or  near  the  time  when  the 
matter  stated  occurred,1  and  of  his  own  knowledge. 

Such  declarations  are  irrelevant  except  so  far  as  they 
relate  to  the  matter  which  the  declarant  stated  in  the  ordi- 
nary course  of  his  business  or  duty. 

Illustrations. 

(a)  The  question  is,  whether  A  delivered  certain  beer  to  B. 

The  fact  that  a  deceased  drayman  of  A's,  on  the  evening  of 
the  delivery,  made  an  entry  to  that  effect,  in  a  book  kept  for 
the  purpose,  in  the  ordinary  course  of  business,  is  relevant.* 

{b)  The  question  is,  what  were  the  contents  of  a  letter  not 
produced  after  notice. 

A  copy  entered  immediately  after  the  letter  was  written,  in  a 
book  kept  for  that  purpose,  by  a  deceased  clerk,  is  a  rele- 
vant fact.8 

(c)  The  question  is,  whether  A  was  arrested  at  Paddington,  or 
in  South  Molton  Street. 

A  certificate  annexed  to  the  writ  by  a  deceased  sheriff's  officer, 
and  returned  by  him  to  the  sheriff,  is  relevant  so  far  as  it  re- 
lates to  the  fact  of  the  arrest ;  but  irrelevant  so  far  as  it 
relates  to  the  place  where  the  arrest  took  place.* 

(rf)  The  course  of  business  was  for  A,  a  workman  in  a  coal- 
pit, to  tell  B,  the  foreman,  what  coals  were  sold,  and  for  B 
(who  could  not  write)  to  get  C  to  make  entries  in  a  book 
accordingly. 


»  Doe  v.  Turford,  3  B.  &  Ad.  893. 

*  Price  v.  Torrington,  1  S.  L   C.  328,  7th  ed. 

*  Pritt  v.  Fairclough,  3  Camp.  305. 

*  Chambers   v.   Bernasconi,  1    C.    M.  &    R.    847 ;    see,    too, 
Smith  v.  Blakey,  L.  R.  2  Q.  B.  326. 


40  A   DIGEST   OF  [PART   I. 

The  entries  (A  and  B  being  dead)  are  not  reWant,  because  B, 
for  whom  they  were  made,  did  not  know  them  to  be  true.1 

(e)  The  question  is,  what  is  A's  age.  A  statement  by  the  in- 
cumbent in  a  register  of  baptisms,  that  he  was  baptised  on  a 
given  day,  is  relevant.  A  statement  in  the  same  register  that 
he  was  born  on  a  given  day  is  irrelevant,  because  it  was  not 
the  incumbent's  duty  to  make  it.2 

Article  28.* 
declarations  against  interest. 

A  declaration  is  relevant  if  the  declarant  had  peculiar 
means  of  knowing  the  matter  stated,  if  he  had  no  interest 
to  misrepresent  it,  and  if  it  was  opposed  to  his  pecuniary 
or  proprietary  interest.3  The  whole  of  any  such  declara- 
tion, and  of  any  other  statement  referred  to  in  it,  is  rele- 
vant, although  matters  may  be  stated  which  were  not 
against  the  pecuniary  or  proprietary  interest  of  the  declar- 
ant; but  statements,  not  referred  to  in,  or  necessary  to 
explain,  such  declarations,  are  not  relevant  merely  because 
they  were  made  at  the  same  time  or  recorded  in  the  same 
place.4 

A  declaration  may  be  against  the  pecuniary  interest  of 
the  person  who  makes  it,  if  part  of  it  charges  him  with  a 
liability,  though  other  parts  of  the  book  or  document  in 


*  See  Note  XX. 
1  Brain  v.  Preece.  11  M.  &  W.  773. 
«  P.  v.  Clapham  4  C.  &  P.  29. 

8  These  are  almost  the  exact  words  of  Bayley,  J.,  in  Glcadow 
v.  Atkin,  1  C.  &  M.  423. 

4  Illustrations  (a)  {b)  and  (c). 


Chap.  IV.]  the  law  of  evidence  42 

•which  it  occurs  may  discharge  him  from  such  liability  in 
whole  or  in  part,  and  [it  seems]  though  there  may  be  no- 
proof  other  than  the  statement  itself  either  of  such  liability 
or  of  its  discharge  in  whole  or  in  part.1 

A  statement,  made  by  a  declarant  holding  a  limited 
interest  in  any  property  against  the  interest  of  the  rever- 
sioner therein,  is  not  a  declaration  against  proprietary 
interest  within  the  meaning  of  this  article.2 

An  endorsement  or  memorandum  of  a  payment  made 
upon  any  promissory  note,  bill  of  exchange,  or  other 
writing,  by  or  on  behalf  of  the  party  to  whom  such  pay- 
ment was  made,  is  not  sufficient  proof  of  such  payment 
to  take  the  case  out  of  the  operation  of  the  statutes  of 
limitation ; 3  but  any  such  declaration  made  in  any  other 
form  by  or  by  the  direction  of  the  person  to  whom  the 
payment  was  made,  is,  when  such  person  is  dead,  sufficient 
proof  for  the  purpose  aforesaid.4 

Any  endorsement  or  memorandum  to  the  effect  above 
mentioned  made  upon  any  bond  or  other  specialty  by  a 
deceased  person,  is  regarded  as  a  declaration  against  the 
proprietary  interest  of  the  declarant  for  the  purpose  above- 
mentioned,  if  it  is  shown  to  have  been  made  at  the  time 


1  Illustrations  (d)  and  (e). 

3  Illustration  (g-) ;  see  Lord  Campbell's  Judgment  incase 
quoted,  p.  177. 

s  9  Geo.  IV.  c.  14,  s.  3. 

*  Bradley  v.  James.  13  C.  B.  822. 


42  A  DIGEST   OF  |PART  !• 

when  it  purports  to  have  been  made ; l  but  it  is  uncertain 
whether  the  date  of  such  endorsement  or  memorandum 
may  be  presumed  to  be  correct  without  independent 
evidence.2 

Statements  of  relevant  facts  opposed  to  any  other  than 
the  pecuniary  or  proprietary  interest  of  the  declarant  are 
not  relevant  as  such.8 

Illustrations, 
(a)  The  question  is,  whether  a  person  was  born  on  a  particular 

day. 
An  entry  in  the  book  of  a  deceased  man-midwife  in  these  words 
is  relevant :  * 

"  W.  Fowden,  Junr.'s  wife 
Filius  circa  hor.  3  post  merid.  natus  H. 
W.  Fowden,  Junr., 
Ap.  22,  filius  natus, 

Wife,  £1  6s.  Id., 
Pd.  25  Oct.,  1768." 
b)  The  question  is,  whether  a  certain   custom  exists  in  a  part 

of  a  parish. 
The  following  entries  in  the  parish  books,  signed  by  deceased 

church-wardens,  are  relevant — 
•'  It  is  our  ancient  custom  thus  to  proportion  church-lay.     The 

chapelry  of  Haworth  pay  one-fifth,  etc." 
Followed  by — 
*  Received  of  Haworth,  who  this  year  disputed  this  our  ancient 


1  3  &  4  Will.  IV.  c.  42,  which  is  the  Statute  of  Limitations 
relating  to  Specialties,  has  no  provision  similar  to  9  Geo.  IV.  c. 
14,  s.  8.     Hence,  in  this  case,  the  ordinary  rule  is  unaltered. 

2  See  the  question  discussed  in  1  Ph.  Ev.  302-5,  and  T.  E. 
ss.  625-9,  and  see  article  85. 

3  Illustration  (h). 

*  Higham  v.  Ridgway,  2  Smith  L.  C.  818,  7th  ed. 


Chap.  IV.]         the  law  of  evidence.  43 

custom,  but  after  we  had  sued  him,  paid  it  accordingly — ^8, 
and  ;£l  for  costs."  * 

(c)  The  question  is,  whether  a  gate  on  certain  land,  the  prop- 
erty of  which  is  in  dispute,  was  repaired  by  A. 

An  account  by  a  deceased  steward,  in  which  he  charges  A  with 
the  expense  of  repairing  the  gate,  is  irrelevant,  though  it 
would  have  been  relevant  if  it  had  appeared  that  A  admitted 
the  charge.2 

(d)  The  question  is,  whether  A  received  rent  for  certain  land. 

A  deceased  steward's  account,  charging  himself  with  the  re- 
ceipt of  such  rent  for  A,  is  relevant,  although  the  balance  of 
the  whole  account  is  in  favor  of  the  steward.3 

(e)  The  question  is,  whether  certain  repairs  were  done  at  A's 
expense. 

A  bill  for  doing  them,  receipted  by  a  deceased  carpenter,  is 

.      Y   there  being  no  other  evidence  either  that  the 
irrelevant  °     J 

repairs  were  done,  or  that  the  money  was  paid. 

(/)  The  question  is,  whether  A  (deceased)  gained  a  settlement 
in  the  parish  of  B  by  renting  a  tenement. 

A  statement  made  by  A,  whilst  in  possession  of  a  house,  that  he 
had  paid  rent  for  it,  is  relevant,  because  it  reduces  the  inter- 
est which  would  otherwise  be  inferred  from  the  fact  of  A's 
possession.6 

(g)  The  question  is,  whether  there  is  a  right  of  common  over 
a  certain  field. 

A  statement  by  A,  a  deceased  tenant  for  a  term  of  the  land  in 


1  Stead  v.  Heaton,  4  T.  R.  669. 

2  Doe  v.  Beviss,  7  C.  B.  456. 

3  Williams  v.  Graves,  8  C.  &  P.  592. 

4  R.  v.  Heyford,  note  to  Higham  v.  Ridgway,  2  S.  L.  C. 
7th  ed. 

6  Doe  v.   Vowles,  1  Mo.  &  Ro.  261. 
8  R.  v.  Exeter,  L.  R.  4  Q.  B.  841. 


44  A  DIGEST    OF  [PART  I. 

question,  that  he  had  no  such  right,  is  relevant  as  against  his 
successors  in  the  term,  but  not  as  against  the  owner  of  the 
field.* 

(h)  The  question  is,  whether  A  was  lawfully  married  to  B. 

A  statement  by  a  deceased  clergyman  that  he  performed  the 
marriage  under  circumstances  which  would  have  rendered 
him  liable  to  a  criminal  prosecution,  is  not  relevant  as  a 
statement  against  interest.2 


Article  29. 
declarations  by  testators  as  to  contents  of  will. 
When  there  is  a  question  as  to  the  contents  of  a  lost  will, 
the  declarations  of  the  deceased  testator  as  to  its  contents 
are  relevant,  whether  they  were  made  before  or  after  the 
loss  of  the  will.3 

Article  30.* 

declarations  as  to  public  and  general  rights. 

Declarations  are  relevant  (subject  to  the  third  condition 
mentioned  in  the  next  article)  when  they  relate  to  the 
existence  of  any  public  or  general  right  or  custom  or  matter 
of  public  or  general  interest.     But  declarations  as  to  par- 


*  See  Note  XXI.  Also  see  Weeks  v.  Sparke,  1  M.  &  S. 
679  ;   Crease  v.  Barrett,  1  C.  M.  &  R.  917. 

1  Papendick  v.  Bridge-water,  5  E.  &  B.  166. 

*  Sussex  Peerage  Case,  11  C.  &  F.  108. 

8  Sugden  v.  St.  Leonards,  '  Weekly  Notes,'  Mar.  26,  1876,  p. 
114.  In  questions  between  the  heir  and  the  legatee  or  devisor, 
such  statement  would  probably  be  relevant  as  admissions  by  a 
privy  in  law,  estate,  or  blood. 


Chap.  IV.]  the  law  of  evidence.  45 

ticular  facts  from  which  the  existence  of  any  such  public 
or  general  right  or  custom,  or  matter  of  public  or  general 
interest,  may  be  inferred,  are  irrelevant. 

A  right  is  public  if  it  is  common  to  all  Her  "Majesty's 
subjects,  and  leclarations  as  to  public  rights  are  relevant 
whoever  made  them. 

A  right  or  custom  is  general  if  it  is  common  to  any  con- 
siderable number  of  persons,  as  the  inhabitants  of  a  parish, 
or  the  tenants  of  a  manor. 

Declarations  as  to  general  rights  are  relevant  only  when 
they  were  made  by  persons  who  are  shown,  to  the  satisfac- 
tion of  the  judge,  or  who  appear  from  the  circumstances  of 
their  statement,  to  have  had  competent  means  of  knowledge. 

Such  declarations  may  be  made  in  any  form  and  manner. 

Illustrations . 

(a)  The  question  is,  whether  a  road  is  public. 

A  statement  by  A  (deceased)  that  it  is  public  is  relevant.1 

A  statement  by  A,  (deceased)  that  he  planted  a  willow  (still 
standing)  to  show  where  the  boundary  of  the  road  had  been 
when  he  was  a  boy,  is  irrelevant.' 

(£)  The  following  are  instances  of  the  manner  in  which  declara- 
tions as  to  matters  of  public  and  general  interest  may  be 
made : — They  may  be  made  in 

Maps  prepared  by  or  by  the  direction  of  persons  interested  in 
the  matter ; 8 


1  Crease  v.  Barrett,  per  Parke,  B..1C.  M.&  R.  929. 

»  /?.  v.  Bliss,  7  A.  &  E.  550. 

3  Implied  in  Hammond  v.  Bradstreet,  10  Ex.  390,  and  Pipe 
v.  Fulcher,  1  E  <fc  E  111.  In  each  of  these  cases  'he  map 
was  rejected  as  not  properly  qualified. 


46  A   DIGEST   OF  [PART  I. 

Copies  of  Court  rolls  : l 

Deeds  and  leases  between  private  persons  :  * 
Verdicts,  judgments,  decrees,  and  orders  of  Courts,  and  similar 
bodies8  if  final.* 

Article  31.* 
declarations  as  to  pedigree. 

A  declaration  is  relevant  (subject  to  the  conditions  here- 
inafter mentioned)  if  it  relates  to  the  existence  of  any 
relationship  between  persons,  whether  living  or  dead,  or  to 
the  birth,  marriage,  or  death  of  any  person,  by  which  such 
relationship  was  constituted,  or  to  the  time  or  place  at 
which  any  such  fact  occurred,  or  to  any  fact  immediately 
connected  with  its  occurrence.5 

Such  declarations  may  express  either  the  personal  knowl- 
edge of  the  declarant,  or  information  given  to  him  by  other 
persons  qualified  to  be  declarants,  but  not  information 
collected  by  him  from  persons  not  qualified  to  be  declar- 
ants.6 They  may  be  made  in  any  form  and  in  any  docu- 
ment or  upon  any  thing  in  which  statements  as  to  relation- 
ship are  commonly  made.7 


*  See  Note  XXII. 

1  Crease  v.  Barrett,  1  C.  M.  &  R    923. 

a  Plaxton  v.  Dare,  10  B.  &  C.  17. 

3  Duke  of  Newcastle  v.  Broxtowe,  4  B.  &  Ad.  278. 

*  Pirn  v.  Cure//,  6  M.  &  W.  234,  266. 
5  Illustration  (a). 

•  Davie s  v.  Lowndes,  6  M.  &  G.  527. 
7  Illustration  {b) 


Chap.  IV.]         the  law  of  evidence.  47 

The  conditions  above  referred  to  are  as  follows — 

(1)  Such  declarations  are  relevant  only  in  cases  in  which 
the  pedigree  to  which  they  relate  is  in  issue,  and  not  to 
cases  in  which  it  is  only  relevant  to  the  issue ; 1 

(2)  They  must  be  made  by  a  declarant  shown  to  be 
legitimately  related  by  blood  to  the  person  to  whom  they 
relate ;  or  by  the  husband  or  wife  of  such  a  person.2 

(3)  They  must  be  made  before  the  question  in  relation 
to  which  they  are  to  be  provided  has  arisen ;  but  they  do 
not  cease  to  be  relevant  because  they  were  made  for  the 
purpose  of  preventing  the  question  from  arising.3 

This  condition  applies  also  to  statements  as  to  public 
and  general  rights  or  customs  and  matters  of  interest. 

Illustrations . 

(a)  The  question  is,  which  of  the  three  sons  (Fortunatus, 
Stephanus,  and  Achaicus) ,  born  at  a  birth,  is  the  eldest. 

The  fact  that  the  father  said  that  Achaicus  was  the  youngest, 
and  he  took  their  names  from  St.  Paul's  Epistles  (see  1  Cor. 
xvi.  17),  and  the  fact  that  a  relation  present  at  the  birth  said 
that  she  tied  a  string  round  the  second  child's  arm  to  dis- 
tinguish it,  are  relevant.* 

(6)  The  question  is,  whether  one  of  the  cestuis  que  vie  in  a 
lease  for  lives  is  living. 

The  fact  that  he  was  believed  in  his  family  to  be  dead  is  irrele- 
vant, as  the  question  is  not  one  of  pedigree.6 


1  Illustration  [c). 

3  Shrewsbury  Peerage  Case,  7  H.  of  L.  26. 
8  Berkeley  Peerage  Case,  4  Cam.  401—417 
*  Vin.  Abr.  tit.  Evidence,  T.  b.   91.     The  report  calls  the 
son  Achicus. 

*  Whittuck  v.   Walters,  4  C.  &  P.  875. 


48  A   DIGEST   OF  [PART  L 

{c)  The  following  are  instances  of  the  ways  in  which  state- 
ments as  to  pedigree  may  be  made:  By  family  conduct  or 
correspondence  ;  in  books  used  as  family  registers ;  in  deeds 
and  wills;  in  inscriptions  on  tombstones,  or  portraits;  in 
pedigrees,  so  far  as  they  state  the  relationship  of  living  per- 
sons known  to  the  compiler.1 

Article  32.* 
evidence  given  en  former  proceeding  "when  relevant. 

Evidence  given  by  a  witness  in  a  previous  action  is  rele- 
vant for  the  purpose  of  proving  the  matter  stated  in  a 
subsequent  action,  or  in  a  later  stage  of  the  same  action6 
when  the  witness  is  dead,2  or  is  mad,3  or  so  ill  that  he  will 
probably  never  be  able  to  travel,4  or  is  kept  out  of  the 
way  by  the  adverse  party,5  or  in  civil,  but  not,  it  seems, 
in  criminal  cases,  is  out  of  the  jurisdiction  of  the  Court, 
or,  perhaps,  in  civil,  but  not  in  criminal,  cases  when  he 
cannot  be  found." 

Provided  in  all  cases — 

(1)  That  the  person  against  whom  the  evidence  is  to  be 


*  See  Note  XXIII. 

1  In  1  Ph.  Ev.  203-15,  and  T.  E.  ss.  583-7,  these  and  many 
other  forms  of  statement  of  the  same  sort  are  mentioned;  and 
see  Davies  v.  Lowndes,  6  M  &  G.  527, 

a  Mayor  of  Doncaster  v.  Day,  8  Tau.  262. 

8  R.  v.  Eriswell,  3  T.  R.  720. 

*  R.  v.  Hogg,  6  C.  A  P.  176. 

6  R.  v.  Scai/e,  17  Q.  B.  238,  248. 

6  Fry  v.   Wood.  1  Atk  444;   R.  v.  Scai/e.  17  Q.  B.  243. 

T  Godbolt,  p.  826,  case  418  ;   R.  v.  Scai/e,  17  Q.  B.  248. 


Chap.  IV.]  the  law  of  evidence.  49 

given  had  the  right  and  opportunity  to  cross-examine  the 
declarant  when  he  was  examined  as  a  witness ;  * 

(2)  That  the  questions  in  issue  were  substantially  the 
same  in  the  first  as  in  the  second  proceeding; l 

Provided  also — 

(3)  That  the  action,  if  civil,  was  between  the  same  par- 
ties or  their  representatives  in  interest; x 

(4)  That,  in  criminal  cases,  the  same  person  is  accused 
upon  the  same  facts.2 

Article  33. 
depositions  before  magistrates. 
A  deposition  taken  under  11  &  12  Vict.  c.  42,  s.  17,  may 
be  produced  and  given  in  evidence  at  the  trial  of  the  per- 
son against  whom  it  was  taken, 

if  it  is  proved  [to  the  satisfaction  of  the  judge]  that  the 
witness  is  dead,  or  so  ill  as  not  to  be  able  to  travel  [although 
there  may  be  a  prospect  of  his  recovery]  ;3 

[or,  if  he  is  kept  out  of  the  way  by  the  person  accused]  * 
or,  [probably  if  he  is  too  mad  to  testify,]  5  and 
if  the  deposition  purports  to  be  signed  by  the  justice  by 
or  before  whom  it  purports  to  have  been  taken ;  and 


1  Doe  v    Tatham,  1  A.  &  E.  319  ;  Doe  v.  Derby,  1  A.  &  E. 
Y83,  785,  7S9. 
'  Bceston's  Case,  Dears.  405. 

*  R.  v.  Stephenson,  L.  &  C.  165. 

*  R.  v.  Scaife,  17  Q.  B.  778. 

*  Analogy  of  R.  v.  Scaife. 

D 


60  A  DIGEST   OF  [PART   L 

if  it  is  proved  by  the  person  who  offers  it  as  evidence 
that  it  was  taken  in  the  presence  of  the  person  accused,  and 
that  he,  his  counsel,  or  attorney,  had  a  full  opportunity  of 
cross-examining  the  witness ; 

Unless  it  is  proved  that  the  deposition  was  not  in  fact 
signed  by  the  justice  by  whom  it  purports  to  be  signed 

[or,  that  the  statement  was  not  taken  upon  oath  ; 

or  [perhaps]  that  it  was  not  read  over  to  or  signed  by 
the  witness.]1 

If  there  is  a  prospect  of  the  recovery  of  a  witness  proved 
to  be  too  ill  to  travel,  the  judge  is  not  obliged  to  receive 
the  deposition,  but  may  postpone  the  trial.2 

"When  a  deposition  or  other  record  of  evidence  is  used  as 
evidence  in  a  subsequent  proceeding,  the  same  objections 
may  be  made  to  the  reading  of  any  part  of  it  as  might  have 
been  made  when  it  was  originally  taken  by  the  party  who 
might  have  objected  when  the  question  was  asked,  but  no 
one  can  object  to  the  reading  of  an  answer  to  a  question 
asked  by  the  representative  of  his  own  party.3 


1  I  believe  the  above  to  be  the  effect  of  11  and  12  Vict.  c.  42, 
s.  17,  as  interpreted  by  the  cases  referred  to,  the  effect  of  which 
is  given  by  the  words  in  brackets,  also  by  common  practice. 
Nothing  can  be  more  rambling  or  ill-arranged  than  the  lan- 
guage of  the  section  itself.  See  1  Ph.  Ev.  87-100 ;  T.  E.  s. 
448,  etc. 

'  R.  v.  Taii,  2  F.  &  F.  558. 

8  Hutchinson  v.  Bernard,  2  Moo.  &  R.  1. 


Chap.  IV.]         the  law  of  evidence.  61 

Article  34. 
depositions  under  30  and  31  vict.  c.  35,  8.  6. 

A  deposition  taken  for  the  perpetuation  of  testimony  in 
criminal  cases,  under  30  and  31  Vict.  c.  35,  s.  6,  may  be 
produced  and  read  as  evidence,  either  for  or  against  the 
accused,  upon  the  trial  of  any  offender  or  offence l  to  which 
it  relates — 

if  the  deponent  is  proved  to  be  dead,  or 

if  it  is  proved  that  there  is  no  reasonable  probability 
that  the  deponent  will  ever  be  able  to  travel  or  to  give 
evidence,  and 

if  the  deposition  purports  to  be  signed  by  the  justice  by 
or  before  whom  it  purports  to  be  taken,  and 

if  it  is  proved  to  the  satisfaction  of  the  Court  that 
reasonable  notice  of  the  intention  to  take  such  deposition 
was  served  upon  the  person  (whether  prosecutor  or  accused) 
against  whom  it  is  proposed  to  be  read,  and 

that  such  person  or  his  counsel  or  attorney  had  or  might 
have  had,  if  he  had  chosen  to  be  present,  full  opportunity 
of  cross-examining  the  deponent.2 


1  Sic. 

*  80  and  81  Vict.  c.  35,  s.  6.  The  section  is  very  long,  and 
as  the  first  part  of  it  belongs  rather  to  the  subject  of  criminal 
procedure  than  to  the  subject  of  evidence,  I  have  omitted  it. 
The  language  is  slightly  altered.  I  have  not  referred  to  depo- 
sitions taken  before  a  coroner  (see  7  Geo.  IV.  c.  64,  s.  4),  be- 
cause the  section  says  nothing  about  the  conditions  on  which 
they  may  be  given  in  evidence.     Their  relevancy,  therefore, 


A   DIGEST   OF  [PART   I. 


Article  35. 

relevancy  of  statement  in  certain  act8  or 
notifications. 

When  any  act  of  state  or  any  fact  of  a  public  nature  is 
in  issue  or  relevant  to  the  issue,  any  statement  of  it  made 
in  a  recital  contained  in  any  public  Act  of  Parliament,  or 
in  any  royal  proclamation  or  speech  of  the  Sovereign,  in 
opening  Parliament,  or  in  any  address  to  the  Crown  of 
either  House  of  Parliament,  is  a  relevant  fact.1 


Article  36. 

relevancy  of  entry  in  public  record  made  in 
performance  of  duty. 

An  entry  in  any  official  book,  register,  or  record  kept  in 
any  of  Her  Majesty's  dominions,  or  at  sea,  or  in  any  foreign 
country,  stating  a  fact  in  issue  or  relevant  fact,  and  made 
in  proper  time  by  any  person  in  the  discharge  of  any  duty 
imposed  upon  him  by  the  law  of  the  place  in  which  such 
book,  register,  or  record  is  kept,  is  itself  a  relevant  fact.2 


depends  on  the  common  law  principles  expressed  in  article  83. 
They  must  be  signed  by  the  coroner ;  but  these  are  matters, 
not  of  evidence,  but  of  criminal  procedure. 

1  R.  v.  Francklin,  17  S.  T.  636;  R.  v.  Sutton,  4  M.  &  S-  532. 

*  T.  E.  (from  Greenleaf )  ss.  1429,  1432. 


Chap.  IV.]  the  law  of  evidence.  53 

Article  37. 

relevancy  of  statements  in  works  of  history)  maps, 

charts,  and  plans. 

Statements  as  to  matters  of  general  public  history,  made 
in  accredited  historical  books,  are  relevant,  when  the  occur- 
rence of  any  such  matter  is  in  issue  or  relevant  to  the  issue  ; 
but  statements  in  such  works  as  to  private  rights  or  customs 
are  irrelevant.1 

[Submitted]  Statements  of  facts  in  issue  or  relevant  facts, 
made  in  published  maps  or  charts  generally  offered  for 
public  sale  as  to  matters  of  public  notoriety,  such  as  the 
relative  position  of  towns  and  countries,  and  such  as  are 
usually  represented  or  stated  in  such  maps,  or  charts,  are 
themselves  relevant  facts  ;2  but  such  statements  are  irrele- 
vant if  they  relate  to  matters  of  private  concern,  or  matters 
not  likely  to  be  accurately  stated  in  such  documents. 

Article  38. 

entries  in  tradesmen's  books. 

No  tradesman  or  handicraftsman  keeping  a  shopbook,  or 

his  executors  or  administrators,  may  give  his  shopbook  in 

evidence  in  any  action  for  money  due  for  wares  delivered 


1  See  cases  in  2  Ph.  Ev.  155-6. 

2  In  R.  v.  Orton,  maps  of  Australia  were  given  in  evidence 

to  show  the  situation  of  various  places  at  which  the  defendant       % 
said  he  had  lived. 


64  A   DIGEST    OF  [PART   I. 

or  work  done  above  a  year  before  the  same  action  brought, 
unless  he  shall  have  obtained  a  bill  of  debt  or  obligation 
of  the  debtor  for  the  said  debt,  or  shall  have  brought  some 
action  against  the  debtor  for  the  debt  or  work  within  a  year 
next  after  the  delivery  of  the  wares  or  the  work  done. 

This  does  not  extend  to  dealings  between  merchant  and 
merchant,  merchant  and  tradesman,  or  tradesman  and 
tradesman,  for  anything  directly  falling  within  the  compass 
or  circuit  of  their  mutual  trades  and  merchandises.1 

Article  39.* 
definition  of  word  "judgment." 
The  word  "judgment"  in  articles  40-47  means  any  final 
judgment  order  or  decree  of  any  Court. 

Article  40. 
all  judgments  conclusive  proof    of    their    legal 

EFFECT. 

All  judgments  whatever  are  conclusive  proof  as  against 
all  the  world,  of  the  existence  of  that  state  of  things  which 
they  actually  effect,  and  they  are  relevant  when  their  own 


*  See  Note  XXIV. 
1  7  James  I.  c.  12.  This  act  is  printed  in  the  revised  edition 
of  the  statutes.  It  appears  to  imply  a  rule  that  shop- 
books  are,  as  such,  admissible  in  proof  of  what  they  state.  If 
this  ever  was  the  law,  it  has  been  superseded  by  the  principles 
stated  in  articles  27  and  28. 


Chap.  IV.]  the  law  of  evidence.  55 

■existence  or  the  existence  of  the  state  of  things  so  effected 
is  a  fact  in  issue  or  relevant  to  the  issue. 

Illustrations. 

(a)  The  question  is,  whether  A  has  been  damaged  by  the  neg- 
ligence of  his  servant  B  in  injuring  C's  horse. 

Judgment  in  an  action,  in  which  C  recovered  damages  against 
A,  is  conclusive  proof  as  against  B,  that  C  did  recover  dam 
ages  against  A  in  that  action.1 

(<5)  The  question  is,  whether  A,  a  shipowner,  is  entitled  to  re- 
cover as  for  a  loss  by  capture  against  B,  an  underwriter. 

A  judgment  of  a  competent  French  prize  court  condemning 
the  ship  and  cargo  as  prize,  is  conclusive  proof  that  the  ship 
and  cargo  were  lost  to  A  by  capture.8 

{c)  The  question  is,  whether  A  can  recover  damages  from  B 
for  a  malicious  prosecution. 

The  judgment  of  a  Court  by  which  A  was  acquitted  is  conclu- 
sive proof  that  A  was  acquitted  by  that  Court.8 

{d)  A,  as  executor  to  B,  sues  C  for  a  debt  due  from  C  to  B. 

The  grant  of  probate  to  A  is  conclusive  proof,  as  against  C, 
that  A  is  B's  executor.* 

(e)  A  is  deprived  of  his  living  by  the  sentence  of  an  ecclesias- 
tical court. 

The  sentence  is  conclusive  proof  of  the  fact  of  deprivation  in 
all  cases.6 


1   Green  v.  New  River  Company,  4  T.  R.  590.     (See  article 
44.  illustration  {a)  ). 

*  Involved  in  Geyerv.  Aguilar,  7  T.  R   681. 

8  Leggalt  v.  Tollervey,  14  Ex.  301 ;  and  see  Caddy  v.  Bar- 
low, 1  Man.  &  Ry.  277. 

*  Allen  v.  Dundas,  87  R.  125—130.     In  this  case  the  will  to 
which  probate  had  been  obtained,  was  forged. 

6  Judgment  of  JLonJ   Holt  in  Phillips  v.  Bury,  2  T.  R.  346, 
851. 


66  A   DIGEST    OF  [PART  ] 

(/)  A  and  B  are  divorced  a  vinculo  matrimonii  by  a  sentence 

of  the  Divorce  Court. 
The  sentence  is  conclusive  proof  of  the  divorce  in  all  cases.1 


Article  41. 
judgments    conclusive    as    between    parties    and 

privies  of  facts  forming  ground  of  judgment. 

Every  judgment  is  conclusive  proof  as  against  parties 
and  privies  of  facts  directly  in  issue  in  the  case,  actually 
decided  by  the  Court,  and  appearing  from  the  judgment 
itself  to  be  the  ground  on  which  it  was  based ;  unless 
evidence  was  admitted  in  the  action  in  which  the  judg- 
ment was  delivered,  which  is  excluded  in  the  action  in 
which  that  judgment  is  intended  to  be  proved. 

Illustrations. 

(a)  The  question  is,  whether  C,  a  pauper,  is  settled  in  parish 
A  or  parish  B. 

D  is  the  mother  and  E  the  father  of  C.  D,  E,  and  several  oJ 
their  children  were  removed  from  A  to  B  before  the  question 
as  to  C's  settlement  arose,  by  an  order  unappealed  against, 
which  order  described  D  as  the  wife  of  E. 

The  statement  in  the  order  that  D  was  the  wife  of  E  is  conclu- 
sive as  between  A  and  B.2 

(d)  A  and  B  each  claim  administration  to  the  goods  of  C, 
deceased. 


1  Assumed  in  Needham  v.  Bremner,  L.  R.  1  C.  P.  582. 

8  R.  v.  Ilarlington  Middle  Quarter,  4  E.  &  B.  780  ;  and  set 
Flitters  v.  All/rey,  L.  R.  10  C.  P.  29;  and  contrast  Dover  v. 
Child,  L    R.  1  Ex.  Div.  172. 


Chap.  IV.]  the  law  of  evidence.  67 

Administration  is  granted  to  B,  the  judgment  declaring  that,  as 
far  as  appears  by  the  evidence,  B  has  proved  himself  next  of 
kin. 

Afterwards  there  is  a  suit  between  A  and  B  for  the  distribution 
of  the  effects  of  C.  The  declaration  in  the  first  suit  is  in  the 
second  suit  conclusive  proof  as  against  A  that  B  is  nearer  of 
kin  to  C  than  A.1 

(c)  A  company  sues  A  for  unpaid  premium  and  calls.  A 
special  case  being  stated  in  the  Court  of  Common  Pleas,  A 
obtains  judgment  on  the  ground  that  he  never  was  a  share- 
holder. 

The  company  being  wound  up  in  the  Court  of  Chancery,  A 
applies  for  the  repayment  of  the  sum  he  had  paid  for  premium 
and  calls.  The  decision  that  he  never  was  a  shareholder  is 
conclusive,  as  between  him  and  the  company,  that  he  never 
was  a  shareholder,  and  is  therefore  entitled  to  recover  the 
sums  he  paid.8 

(d)  A  obtains  a  decree  of  judicial  separation  from  her  husband 
B,  on  the  ground  of  cruelty  and  desertion,  proved  by  her 
own  evidence. 

Afterwards  B  sues  A  for  dissolution  of  marriage  on  the  ground 
of  adultery,  in  which  suit  neither  B  nor  A  can  give  evidence. 
A  charges  B  with  cruelty  and  desertion.  The  decree  in  the 
first  suit  is  irrelevant  in  the  second.8 

Article  42. 
statements  in  judgments  irrelevant  as  between 

strangers,  except  in  admiralty  cases. 
Statements  contained  in  judgments  as  to  the  facts  upon 
which  the  judgment  is  based,  are  irrelevant  as  between 


1  Barrs  v.  Jackson,  1  Phill.  5S2.  58 7.  53S, 

2  Bank  of  Hindustan,  etc.,  All-son's  Case,  L.  R.  9  Ch.  App.  24. 
*  Stoate  v.  Stoate,  2  Swa.  &  Tri.  223. 


68  A  DIGEST   OF  [PART   I. 

strangers,  or  as  between  a  party,  or  privy,  and  a  stranger, 
except 1  in  the  case  of  judgments  of  Courts  of  Admiralty 
condemning  a  ship  as  prize.  In  such  cases  the  judgment 
is  conclusive  proof  as  against  all  the  world,  of  the  fact  on 
which  the  condemnation  proceeded,  where  such  fact  is 
plainly  stated  upon  the  face  of  the  sentence. 

Illustrations. 

{a)  The  question  between  A  and  B  is,  whether  certain  lands  in 
Kent  had  been  disgavelled.  A  special  verdict  on  a  feigned 
issue  between  C  and  D  (strangers  to  A  and  B)  finding  that 
in  the  2d  Edw.  VI.  a  disgavelling  act  was  passed,  in  words 
set  out  in  the  verdict,  is  irrelevant.2 

{£)  The  question  is,  whether  A  committed  bigamy  by  marrying 
B  during  the  lifetime  of  her  former  husband  C. 

A  decree  in  a  suit  of  jactitation  of  marriage,  forbidding  C  to 
claim  to  be  the  husband  of  A,  on  the  ground  that  he  was  not 
her  husband,  is  irrelevant.8 

(c)  The  question  is,  whether  A,  a  shipowner,  has  broken  a 
warranty  to  B,  an  underwriter,  that  the  cargo  of  the  ship 
whose  freight  was  insured  by  A,  was  neutral  property. 

The  sentence  of  a  French  prize  court  condemning  ship  and 
cargo,  on  the  ground  that  the  cargo  was  enemy's  property, 
is  conclusive  proof  in  favor  of  B  that  the  cargo  was  enemy's 
property  (though  on  the  facts  the  Court  thought  it  was  not).4 


1  This  exception  is  treated  by  Lord  Eldon  as  an  objection- 
able anomaly  in  Lothian  v.  Henderson.  See,  too,  Castrique  v. 
Imrie,  8  B.  &  P.  545.     L.  R.  4  E.  &  I.  App.  434-5. 

8  Doe  v.  Brydges,  6  M.  &  G.  282. 

•  Duchess  of  Kingston!*  Case,  2  Smith's  Leading  Cases,  760. 

*  Geyer  v.  Aguilar,  IT   R.  681. 


Chap.  IV.]         the  law  of  evidence.  69 

Article  43. 
effect  of  judgment  not  pleaded  as  an"  estoppel. 
If  a  judgment  is  not  pleaded  by  way  of  estoppel,  it  is  as 

between  parties  and  privies  a  relevant  fact,  whenever  any 

matter  which  was  or  might  have   been  decided  in  the 

action  in  which  it  was  given,  is  in  issue  or  relevant  to  the 

issue  in  any  subsequent  action. 
Such  a  judgment  is  conelusive  proof  of  the  facts  which 

it  decides,  or  might  have  decided,  if  the  party  who  gives 

evidence  of  it  had  no  opportunity  of  pleading  it  as  an 

estoppel. 

Illustrations. 

(a)  A  sues  B  for  deepening  the  channel  of  a  stream,  whereby 
the  flow  of  water  to  A's  mill  was  diminished. 

A  verdict  recovered  by  B  in  a  previous  action  for  substantially 
the  same  cause,  and  which  might  have  been  pleaded  as  an 
estoppel,  is  relevant,  but  not  conclusive  in  B's  favor.1 

(J>)  A  sues  B  for  breaking  and  entering  A's  land,  and  building 
thereon  a  wall  and  a  cornice.  B  pleads  that  the  land  was 
his,  and  obtains  a  verdict  in  his  favor  on  that  plea. 

Afterwards  B's  devisee  sues  A's  wife  (who  on  the  irial  admitted 
that  she  claimed  through  A)  for  pulling  down  the  wall  and 
cornice.  As  the  first  judgment  could  not  be  pleaded  as  an 
estoppel  (the  wife's  right  not  appearing  on  the  pleadings),  it 
is  conclusive  in  B's  favor  that  the  land  was  his.8 


lVooghtv.  Winch,  2  B.  &  A.  662;  and  see  Feversham  v. 
Emerson,  11  Ex.  391. 

»  Whitaker  v.  Jackson,  2  H.  &  C.  926.  This  had  pre- 
viously been  doubted-     See  2  Ph.  Ev.  24,  n.  4. 


60  A   DIGEST    OF  [PART  I. 


Article  44. 

judgments   generally   irrelevant  as    between 

strangers. 

Judgments  are  not  relevant  as  rendering  probable  facta 
which  may   be  inferred  from  their  existence,  but  which 
they  neither  state  nor  decide- 
As  between  strangers ; 

As  between  parties  and  privies  in  suits  where  the  issue 
is  different,  even  though  they  relate  to  the  same  occur- 
rence or  subject  matter; 

Or  in  favor  of  strangers  against  parties  or  privies. 

But  a  judgment  may  be  relevant  as  between  strangers: 

(1)  As  being  an  admission,  or 

(2)  If  it  relates  to  a  matter  of  public  or  general  interest, 
as  a  statement  under  article  30. 

Illustrations. 

(a)  The  question  is,  whether  A  has  sustained  loss  by  the  negli- 
gence of  B,  his  servant,  who  has  injured  C's  horse. 

A  judgment  recovered  by  C  against  A  for  the  injury,  though 
conclusive  as  against  B,  as  to  the  fact  that  C  recovered  a 
sum  of  money  from  A,  is  irrelevant  to  the  question,  whether 
this  was  caused  by  B's  negligence.1 

(6)  The  question,  whether  a  bill  of  exchange  is  forged,  arises  in 
an  action  on  the  bill.  The  fact  that  A  was  convicted  of 
forging  the  bill  is  irrelevant.' 


1  Green  v.  New  River  Company,  4  T.  R.  589. 

2  Per  Blackburn,  J.,  in  Castrique  v.  Jmrie,  L.   R.  4  E. 
App.  434. 


Chap.  IV.]  the  law  of  evidence.  61 

(c)  A  collision  takes  place  between  two  ships  A  and  B,  each  of 
which  is  damaged  by  the  other. 

The  owner  of  A  sues  the  owner  of  B,  and  recovers  damages 
on  the  ground  that  the  collision  was  the  fault  of  B's  captain. 
This  judgment  is  not  conclusive  in  an  action  by  the  owner  of 
B  against  the  owner  of  A,  for  the  damage  done  to  B.1  [Sem- 
ite it  is  irrelevant.]  3 

(d)  A  is  prosecuted  and  convicted  as  a  principal  felon. 

B  is  afterwards  prosecuted  as  an  accessory  to  the  felony  com- 
mitted by  A. 

The  judgment  against  A  is  irrelevant  as  against  B,  though  A's 
guilt  must  be  proved  as  against  B.3 

(e)  A  sues  B,  a  carrier,  for  goods  delivered  by  A  to  B. 

A  judgment  recovered  by  B  against  a  person  to  whom  he  had 
delivered  the  goods,  is  relevant  as  an  admission  by  B  that  he 
had  them.* 

(/)  A  sues  B  for  trespass  on  land. 

A  judgment,  convicting  A  for  a  nuisance  by  obstructing  a  high- 
way on  the  place  said  to  have  been  trespassed  on,  is  [at 
least]  evidence  to  show  chat  the  place  was  a  public  highway 
[and  is  possibly  conclusive].5 

Article  45. 

judgments  conclusive  in  favor  of  judge. 

"When  any  action  is  brought  against  any  person  for  any 

thing  done  by  him  in  a  judicial  capacity,  the  judgment 

delivered,  and  the  proceedings  antecedent  thereto,  are  con- 


1  The  Calypso,  1  Swab.  Ad.  2S. 

2  On  the  general  principle  in  Duchess  of Kingston 's  Case. 

3  Semble  from  R.  v.  Turner,  1  Moo.  C.  C.  347. 
*  Buller  N.  P.  242,  b. 

5  Petrie  v.  Nuitalt,  11  Ex.  569. 


62  A   DIGEST   OF  [PART  L 

elusive  proof  of  the  facts  therein  stated,  whether  they  are 

or  are  not  necessary  to  give  the  defendant  jurisdiction. 
Illustration. 

A  sues  B  (a  justice  of  the  peace)  for  taking  from  him  a  vessel 
and  500  pounds  of  gunpowder  thereon.  B  produces  a  con- 
viction before  himself  of  A  for  having  gunpowder  in  a  boat 
on  the  Thames  (against  2  Geo.  III.  c.  28). 

The  conviction  is  conclusive  proof  for  B  that  the  thing  called  a 
boat  was  a  boat.1 

Article  46. 

fraud,  collusion,  or  want  of  jurisdiction  may  bb 

PROVED. 

Whenever  any  judgment  is  offered  in  evidence  under 
any  of  the  articles  hereinbefore  contained,  the  party  against 
whom  it  is  so  offered  may  prove  that  the  Court  which 
gave  it  had  no  jurisdiction,  or  that  it  has  been  reversed,  or, 
if  he  is  a  stranger  to  it,  that  it  was  obtained  by  any  fraud 
or  collusion,  to  which  neither  he  nor  any  person  to  whom 
he  is  privy  was  a  party.  It  is  doubtful  whether  a  party  or 
privy  to  such  a  judgment  can  show  that  it  was  obtained  by 
a  fraud  to  which  he  was  not  a  party.3 

Article  47. 
foreign  judgments. 
The  provisions  of  articles  40-46  apply  to  such  of  the 
judgments  of  Courts  of  foreign  countries  as  can  by  law  be 


1  Brittain  v.  Kinnaird,  1  B.  &  B.  432. 

*  Cases  collected  in  T.  E.  ss.  1524-1525.  s.  1580.     See,  too, 
2  Ph.  Ev.  85. 


Chap.  IV.]  the  la~w  of  eytdence.  6& 

enforced  in  this  country,  and  so  far  as  they  can  be  so 

enforced.1 

1  The  cases  on  this  subject  are  collected  in  the  note  on  the 
Duchess  of  Kingston's  Case,  2  S.  L.  C.  813-845.  A  list  of  the 
cases  will  be  found  in  R.  N.  P.  221-3.  The  last  leading  cases 
on  the  subject  are  Godard  v.  Gray,  L.  R.  6  Q.  B.  139,  and 
Castriaue  v.  /mru,  L.  R.  4  E.  &  I.  App.  414. 


64  A  DIGEST   OF  [PART  1. 


CHAPTER    V.* 
OPINIONS,  WHEfii  RELEVANT  AND  WHEN  NOT. 

Article  48. 
opinion  generally  irrelevant. 
The  fact  that  any  person  is  of  opinion  that  a  fact  in  issue, 
or  relevant  to  the  issue,  does  or  does  not  exist,  is  not  re- 
garded as  relevant  to  the  existence  of  such  fact,  within  any 
of  the  articles  hereinbefore  contained,  except  in  the  cases 
specified  in  this  chapter. 

Illustration. 
The  question  is,  whether  A,  a  deceased  testator,  was  sane  or 
not  when  he  made  his  will.      His  friends'  opinions  as  to  his 
sanity,  as  expressed  by  the  letters  which  they  addressed  to 
him  in  his  lifetime,  are  irrelevant.1 

Article  49. 

opinions  of  experts  on  points  of  science  or  art. 

When  there  is  a  question  as  to  any  point  of  science  or 
art,  the  opinions  upon  that  point  of  persons  specially 
skilled  in  any  such  matter  are  relevant  facts. 

Such  persons  are  hereinafter  called  experts. 


♦See  Note    XXV. 
1    Wright  v.  Doe  d.  Tat  ham,  7  A   &  E.  818. 


Chap.  V.]  the  law  of  evidence.  66 

The  words,  "science  or  art,"  include  all  subjects  on 
which  a  course  of  special  study  or  experience  is  necessary 
to  the  formation  of  an  opinion,1  and  amongst  others  the 
examination  of  handwriting. 

"When  there  is  a  question  as  to  a  foreign  law  the  opin- 
ions of  experts,  who  in  their  profession  are  acquainted  with 
such  law,  are  the  only  admissible  evidence  thereof,  though 
such  experts  may  produce  to  the  Court  books  which  they 
declare  to  be  works  of  authority  upon  the  foreign  law  in 
question,  which  books  the  Court,  having  received  all  neces- 
sary explanations  from  the  expert,  may  construe  for  itself.2 

It  is  the  duty  of  the  judge  to  decide,  subject  to  the 
opinion  of  the  Court  above,  whether  the  skill  of  any  per- 
son in  the  matter  on  which  evidence  of  his  opinion  is 
offered  is  sufficient  to  entitle  him  to  be  considered  as  an 
expert.3 

The  opinion  of  an  expert  as  to  the  existence  of  the  facts 
on  which  his  opinion  is  to  be  given  is  irrelevant,  unless  he 
perceived  them  himself.4 

Illustrations, 
(a)  The  question  is,  whether  the  death  of  A  was  caused  by 

poison. 

1  1  S  L.  C.  555,  7th  ed.  (note  to  Carter  v.  Boehm);  28  Vict, 
c  18,  s.  18. 

2  Baron  de  Bodes  Case,  8  Q.  B.  250-267 ;  Di  Sora  v.  Phil- 
lipps,  10  H.  L.  624;  Castrique  v.  Imrie,  L.  R.  4  E.  &  I.  App. 
434;  see,  too,  Pictons  Case,  30  S.  T,  510-511. 

»  Brisiow  v.  Sequeville,  6   Ex.  275  ;  Rowley  v.  L.  6*  N.   W. 
Railway,  L.  R.  S.  Ex.  221. 
«  1  Ph.  507 :  T.  E.  s.  1278. 

E 


66  A   DIGEST    OF  [PART   I. 

The  opinions  of  experts  as  to  the  symptoms  produced  by  the 
poison  by  which  A  is  supposed  to  have  died,  are  relevant.1 

(i)  The  question  is,  whether  A,  at  the  time  of  doing  a  certain 
act,  was,  by  reason  of  unsoundness  of  mind,  incapable  of 
knowing  the  nature  of  the  act,  or  that  he  was  doing  what  was 
either  wrong  or  contrary  to  law. 

The  opinions  of  experts  upon  the  question  whether  the  symp- 
toms exhibited  by  A  commonly  show  unsoundness  of  mind, 
and  whether  such  unsoundness  of  mind  usually  renders  per- 
sons incapable  of  knowing  the  nature  of  the  acts  which  they 
do,  or  of  knowing  that  what  they  do  is  either  wrong  or  con- 
trary to  law,  are  relevant.2 

(c)  The  question  is,  whether  a  certain  document  was  written 
by  A.  Another  document  is  produced  which  is  proved  or 
admitted  to  have  been  written  by  A. 

The  opinions  of  experts  on  the  question  whether  the  two  docu- 
ments were  written  by  the  same  person  or  by  different  per- 
sons, are  relevant.* 

(d)  The  opinions  of  experts  on  the  questions,  whether  in  illus- 
tration (a)  A's  death  was  in  fact  attended  by  certain  symp- 
toms; whether  in  illustration  (£)  the  symptoms  from  which 
they  infer  that  A  was  of  unsound  mind  existed  ;  whether  in 
illustration  (c)  either  or  both  of  the  documents  were  written 
by  A,  are  irrelevant. 

Article  50. 
facts  bearing  upon  opinions  of  experts. 
Facts  not  otherwise  relevant,  are  relevant  if  they  sup- 
port or  are  inconsistent  with  the  opinions  of  experts,  when 
such  opinions  are  relevant. 


1  R.  v.   Palmer,  {passim).     See  my   '  Gen.  View  of  Crim. 
Law,"  357. 

2  R.\.  Dove  (passim).     Ibid,  891. 
•  23  Vict.  c.  18.  s.  8. 


Chap.  V.]  the  law  of  evidence.  67 

Illustrations, 
(a)  The  question   is,  whether  A  was   poisoned   by  a  certain 

poison. 
The  fact  that  other  persons,  who  were  poisoned  by  that  poison, 

exhibited  certain  symptoms  which  experts  affirm  or  deny  to 

be  the  symptoms  of  that  poison,  is  relevant.1 
(3)  The  question  is,  whether  an  obstruction  to  a  harbor  is  caused 

by  a  certain  bank.  An  expert  gives  his  opinion  that  it  is  not. 
The  fact  that  other  harbors  similarly  situated  in  other  respects, 

but  where  there  were  no  such  banks,2  began  to  be  obstructed 

at  about  the  same  time,  is  relevant. 

Article  51. 
opinion  as  to  handwriting,  "when  relevant. 

When  there  is  a  question  as  to  the  person  by  whom  any 
document  was  written  or  signed,  the  opinion  of  any  per- 
son acquainted  with  the  handwriting  of  the  supposed  writer 
that  it  was  or  was  not  written  or  signed  by  him,  is  a  rele- 
vant fact. 

A  person  is  deemed  to  be  acquainted  with  the  hand- 
writi-g  of  another  person  when  he  has  at  anytime  seen 
that  person  write,  or  when  he  has  received  documents  pur- 
porting to  be  written  by  that  person  in  answer  to  docu- 


1  R.  v.  Palmer,  printed  trial,  p.  124,  <fcc.  In  this  case  (tried 
in  1S56)  evidence  was  given  of  the  symptoms  attending  the 
deaths  of  Agnes  Senet,  poisoned  by  strychnine  in  1845,  Mrs. 
Serjeantson  Smith,  similarly  poisoned  in  1S43,  and  Mrs.  Dove, 
murdered  by  the  same  poison  subsequently  to  the  death  of 
Cook,  for  whose  murder  Palmer  was  tried. 

8  Foulkes  v.  Chadd,  8  Doug.  157. 


68  A   DIGEST    OF  [PART   1. 

ments  written  bj'  himself  or  under  his  authority  and  ad- 
dressed to  that  person,  or  when,  in  the  ordinary  course  of 
business,  documents  purporting  to  be  written  by  that 
person  have  been  habitually  submitted  to  him.1 

Illustration. 
The  question  is  whether  a  given  letter  is  in  the  handwriting  of 

A,  a  merchant  in  Calcutta. 

B  is  a  merchant  in  London,  who  has  written  letters  addressed 
to  A,  and  received  letters  purporting  to  be  written  by  him. 
C  is  B's  clerk,  whose  duty  it  was  to  examine  and  file  B's 
correspondence.  D  is  B's  broker,  to  whom  B  habitually 
submitted  the  letters  purporting  to  be  written  by  A  for  the 
purpose  of  advising  with  him  thereon. 

The  opinions  of  B,  C,  and  D  on  the  question  whether  the 
letter  is  in  the  handwriting  of  A  are  relevant,  though  neither 

B,  C,  nor  D  ever  saw  A  write.* 

The  opinion  of  C,  who  saw  A  write  once  twenty  years  ago,  is 
also  relevant.8 

Article  52. 
comparison  op  handwritings. 
Comparison  of  a  disputed  handwriting  with  any  writing 
proved  to  the  satisfaction  of  the  judge  to  be  genuine  is 
permitted  to  be  made  by  witnesses,  and  such  writings, 
and  the  evidence  of  witnesses  respecting  the  same,  may  be 
submitted  to  the  Court  and  jury  as  evidence  of  the  genu- 


1  See  Illustrations. 

*  Doe  v.  Sackermore,  5  A.  A  E.  705  (Coleridge,  J.);  780  (Pat- 
teson,  J.);  739-40  (Denman,  C.  J.). 
■  R.  v.  Home  Tooke,  25  S.  T.  71-2. 


Chap.  V.]  the  law  of  evidence.  69 

ineness  or  otherwise  of  the  writing  in  dispute.  This  para- 
graph applies  to  all  courts  of  judicature,  criminal  or  civil, 
and  to  all  persons  having  by  law,  or  by  consent  of  parties, 
authority  to  hear,  receive,  and  examine  evidence.1 

Article  53. 

opinion  as  to  existence  of  marriage,  when 

relevant. 

When  there  is  a  question  whether  two  persons  are  or 

are  not  married,  the  opinion,  expressed  by  conduct,    of 

their  acquaintances  and  friends,  is  a  relevant  fact ;  but  such 

opinions  are  not  sufficient  evidence  to  prove  a  marriage  in 

a  prosecution  for  bigamy  or  in  proceedings  for  a  divorce, 

or  in  a  petition  for  damages  against  an  adulterer.2 

Article  54. 
grounds  of  opinion,  when  relevant. 
Whenever  the  opinion  of  any  living  person  is  relevant, 
the  grounds  on  which   such  opinion  is  based  are  also 
relevant. 

Illustration. 

An  expert  may  give  an  account  of  experiments  performed  by 
him  for  the  purpose  of  forming  his  opinion. 


1  IT  and  18  Vict.  c.  125,  s.  27  ;  28  Vict.  c.  18,  s.  8. 

2  Morris  v.  Miller,  2  Burr.  2057  ;  Birt  v.  Barlow,  1  Doug. 
170;  and  see  Catherwood  v.  Caslon,  13  Mow.  261.  Compare 
R.  v.  Mainwaring,  Dear   6°  B    132 


70  A   DIGEST   OF  [PART   I. 


CHAPTER  VI.* 

CHARACTER,  WHEN  RELEVANT  AND  WHEN 
NOT. 

Article  55. 
character  generally  irrelevant. 
The  fact  that  a  person  is  of  a  particular  character  is  not 
deemed  to  be  relevant  to  any  inquiry  respecting  his  con- 
duct under  any  of  the   articles   hereinbefore   contained, 
except  in  the  cases  mentioned  in  this  chapter. 

Article  56. 
evidence  of  character  in  criminal  cases. 
In  criminal  proceedings,  the  fact  that  the  person  accused 
has  a  good  character,  is  relevant;  but  the  fact  that  ho  has  . 
a  bad  character  is  irrelevant,  unless  it  is  itself  a  fact  in 
issue,  or  unless  evidence  has  been  givsn  that  he  has  a  good 
character,  in  which  case  it  becomes  relevant. 

When  any  person  gives  evidence  of  his  good  character 
who — 


*  See  Note  XXVI. 


Chap.  VI.]  the  law  of  evidence.  71 

Being  on  his  trial  for  any  felony  not  punishable  with 
•death,1  has  been  previously  convicted  of  felony; 

Or,  who  being  upon  his  trial  for  any  offence  punishable 
under  the  Larceny  Act,  1861,  has  been  previously  convicted 
of  any  felony,  misdemeanor  or  offence  punishable  upon 
summary  conviction ; 2 

Or  who,  being  upon  his  trial  for  any  offence  against  the 
Coinage  Offences  Act,  1861,  or  any  former  Act  relating  to 
the  coin,  has  been  previously  convicted  of  any  offence 
against  any  such  Act.3 

The  prosecutor  may,  in  answer  to  such  evidence  of  good 
character,  give  evidence  of  any  such  previous  conviction 
before  the  jury  return  their  verdict  for  the  offence  for  which 
the  offender  is  being  tried.4 

In  this  article  the  word  character  means  reputation  as 
distinguished  from  disposition,  and  evidence  may  be  given 
only  of  general  reputation  and  not  of  particular  acts  by 
which  reputation  or  disposition  is  shown.5 

Article  57. 
character  as  affecting  damages. 
In  civil  cases,  the  fact  that  the  character  of  any  party  to 


1  Y  &  8  Geo.  IV.  c.  28,  s,  11,  amended  by  6  &  7  Will.  IV.  c. 
111.  If  "  not  punishable  with  death  "  means  not  so  punishable 
at  the  time  when  7  &  8  Geo.  IV.  c.  28  was  passed  (21  June 
1827),  this  narrows  the  effect  of  the  article  considerably. 

2  24  &  25  Vict.  c.  96,  s.  116. 
■  24  &  25  Vict.  c.  99,  s.  37. 

*  See  each  of  the  Acts  above  referred  to. 
5  R.  v.  Rowton,  1  L.  &  C.  520. 


72  A   DIGEST   OF  [PART  L 

the  action  is  such  as  to  affect  the  amount  of  damages 
which  he  ought  to  receive,  is  generally  irrelevant.1' 


1  In  1  Ph.  Ev.  504,  &c,  and  T.  E.  s.  833,  all  the   cases  are 

referred  to.     The  most  important  are v.  Moor,  1  M.  &  S. 

284,  which  treats  the  evidence  as  admissible,  though  perhaps  it 
does  not  absolutely  affirm  the  proposition  that  it  is  so  ;  and 
Jones  v.  Stevens,  11  Price,  235,  see  especially  pp.  265,  268, 
which  decides  that  it  is  not.  The  question  is  now  rendered 
comparatively  unimportant,  as  the  object  for  which  such  evi- 
dence used  to  be  tendered  can  always  be  obtained  by  cross- 
examining  the  plaintiff  to  his  credit. 


Chap.  VIL]  the  law  of  evidence.  73 


PART   II.— ON   PEOOF. 

CHAPTER  VH. 
FACTS  WHICH  NEED  NOT  BE  PROVED— JU- 
DICIAL NOTICE. 

Article  58.* 
of  what  facts  the  court  takes  judicial  notice. 
It  is  the  duty  of  all  judges  to  take  judicial  notice  of  the 
following  facts  — 

(1)  All  unwritten  laws,  rules,  and  principles  having  the 
force  of  law  adm  -tered  by  any  Court  sitting  under  the 
authority  of  Her  Majesty  and  her  successors  in  England  or 
Ireland,  whatever  may  be  the  nature  of  the  jurisdiction 
thereof.1  ^ 

(2)  All  public  Acts  of  Parliament,1  and  all  Acts  of  Par- 
liament whatever,  passed  since  February  4,  1851,  unless 
the  contrary  is  expressly  provided  in  any  such  Act.2 

(3)  The  general  course  of  proceeding  and  privileges  of 
Parliament  and  of  each  House  thereof,  and  the  date  and 


*  See  Note  XXVII. 

1  Ph.  Ev.  460-1 ;   T.  E.  s.  4,  and  see  36  &  37  Vict.  c.  66  (Ju- 
dicature Act  of  1873),  s.  25. 

2  13  &  14  Vict.  c.  21,  ss.  7,  8,  and  see  (for  date)  caption  of 
session  of  14  &  15  Vict. 


74  A   DIGEST    OF  [PART   II. 

place    of   their    sittings,   but    not    transactions    in  their 
journals.1 

(4)  All  general  customs  which  have  been  held  to  have 
the  force  of  law  in  any  division  of  the  High  Court  of 
Justice  or  by  any  ol  the  superior  courts  of  law  or  equity, 
and  all  customs  which  have  been  duly  certified  to  and 
recorded  in  any  such  court.2 

(5)  The  course  of  proceeding  and  all  rules  of  practice  in 
force  in  the  Supreme  Court  of  Justice.  Courts  of  a  limited 
or  inferior  jurisdiction  take  judicial  notice  of  their  own 
course  of  procedure  and  rules  of  practice,  but  not  of  those 
of  other  courts  of  the  same  kind,  nor  does  the  Supreme 
Court  of  Justice  take  judicial  notice  of  the  course  of  pro- 
cedure and  rules  of  practice  of  such  courts.3 

(6)  The  accession  and  [semble]  the  sign  manual  of  Her 
Majesty  and  her  successors.4 

(7)  The  existence  and  title  of  every  State  and  Sovereign 
recognized  by  Her  Majesty  and  her  successors.5 

(8)  The  accession  to  office,  names,  titles,  functions,  and, 
when  attached  to  any  decree,  order,  certificate,  or  other 


1  Ph.  Ev.  460  ;  T.  E.  s.  5. 

2  The  rule  was  that  each  Court  took  notice  of  customs  held 
by  or  certified  to  it  to  have  the  force  of  law.  It  is  submitted 
that  the  effect  of  the  Judicature  Act,  which  fuses  all  the  courts 
together,  must  be  to  produce  the  result  stated  in  the  text.  As 
to  the  old  law,  see  Piper  v.  Chappell,  14  M.  &  W.  649  -50. 

»  1  Ph.  Ev.  462-3;  T.  E.  s.  19. 
*  1  Ph.  Ev.  453  ;  T.  E.  ss.  16,  19.  " 
5  1  Ph.  Ev.460;  T.  E.  s.  3. 


Chap.  YIL]       the  law  of  evidence.  75 

judicial  or  official  documents,  the  signatures,  of  all  the 
judges  of  the  Supreme  Court  of  Justice.1 

(9)  The  Great  Seal,  the  Privy  Seal,  the  seals  of  the 
Superior  Courts  of  Justice,2  and  all  seals  which  any  Court 
is  authorized  to  use  by  any  Act  of  Parliament,  certain  other 
Seals  mentioned  in  Acts  of  Parliament,3  the  seal  of  the  Cor- 
poration of  London,4  and  the  seal  of  any  notary  public.5 

(10)  The  extent  of  the  territories  under  the  dominion  of 
Her  Majesty  and  her  successors;  the  territorial  and  politi- 
cal divisions  of  England  and  Ireland,  but  not  their  geo- 
graphical position  or  the  situation  of  particular  places ;  the 
commencement,  continuance,  and  termination  of  war  be- 
tween Her  Majesty  and  any  other  Sovereign;  and  all  other 
public  matters  directly  concerning  the  general  government 
of  Her  Majesty's  dominions.6 

(11)  The  ordinary  course  of  nature,  natural  and  artificial 
divisions  of  time,  the  meaning  of  English  words.7 

(12)  All  other  matters  which  they  are  directed  by  any 
statute  to  notice.8 


1  1  Ph.  462;  T.  E  19  ;  and  as  to  latter  part,  8  &  9  Vict.  c. 
113.  s.  2,  as  modified  by  36  &  37  Vict.  c.  66,  s.  76  (Judicature 
Act  of  1873). 

2  The  Judicature  Acts  confer  no  seal  on  the  Supreme  or 
High  Court  or  its  divisions. 

3  Doe  v.  Edwards,  9  A.  &  E.  555.     See  a  list  in  T.  E.  s.  6. 
*  1  Ph.  Ev.  464  ;  T.  E.  s.  6. 

5  Cole  v.  Sherard,  11  Ex.  4S2. 

6  1  Ph.  Ev.  466,  460,  453  ,  and  T.  E.  ss.  15-16. 

7  1  Ph.  Ev.  465-6  ;  T.   E.  s.  14. 

8  E.g.,  the  Articles  of  War.     See  sec.  1  of  the  Mutiny  Act. 


76  a  digest  of  [Tart  LL 

Article  59. 
as  to  proof  of  such  facts. 
No  fact  of  which  the  Court  will  take  judicial  notice  need 
be  proved  by  the  party  alleging  its  existence ;  but  the 
judge,  if  he  is  unacquainted  with  such  fact,  may  refer  to 
any  person  or  to  any  document  or  book  of  reference  for 
his  satisfaction  in  relation  thereto,  or  may  refuse  to  take 
judicial  notice  thereof  unless  and  until  the  party  calling 
upon  him  to  take  such  notice  produces  any  such  document 
or  book  of  reference.1 

Article  60. 
facts  admitted  need  not  be  proved. 
No  fact  need  be  proved  in  any  action  which  the  parties 
thereto  or  their  agents  agree  to  admit  at  the  hearing,  or 
which  they  have  admitted  before  the  hearing  and  with 
reference  thereto,  or  by  their  pleadings.2  In  a  trial  for 
felony  the  prisoner  can  make  no  admissions  so  as  to  dis- 
pense with  proof,  though  a  confession  may  be  proved  as 
against  him,  subject  to  the  rules  stated  in  articles  21-24.3 


1  T.  E.  (from  Greenleaf)  s.  20.  E.  g„  a  judge  will  refer  in 
case  of  need  to  an  almanac,  or  to  a  printed  copy  of  the  stat- 
utes, or  write  to  the  Foreign  Office  to  know  whether  a  State 
had  been  recognized. 

*  See  Schedule  to  Judicature  Act  of  1875,  Order  xxxii. 

•  1  Ph.  Ev.  391,  n.  6.  In  R.  v.  Thornhill,  8  C.  &  P.,  Lord 
Abinger  acted  upon  this  rule  in  a  trial  for  perjury. 


•CHAP.  VIII. J         THE   LAW   OF  EVIDENCE.  1 1 


CHAPTER  VITL 

OF  ORAL  EVIDENCE. 

Article  61. 

proof  of  facts  by  oral  evidence. 

All  facts  may  be  proved  by  oral  evidence,  except — 

(1)  The  contents  of  such  documents  as  must  be  proved 
otherwise ;  and 1 

(2)  Such  facts  as  must  be  proved  either  by  documentary 
evidence  or  by  secondary  evidence  of  the  contents  of 
-documents.2 

Article  62.* 
oral  evidence  must  be  direct. 

Oral  evidence  must  in  all  cases  whatever  be  direct ;  that 
is  to  say — 

If  it  refers  to  a  fact  alleged  to  have  been  seen,  it  must 
be  the  evidence  of  a  witness  who  says  he  saw  it ; 

If  it  refers  to  a  fact  alleged  to  have  been  heard,  it  must 
be  the  evidence  of  a  witness  who  says  he  heard  it ; 

If  it  refers  to  a  fact  alleged  to  have  been  perceived  by 
any  other  sense  or  in  any  other  manner,  it  must  be  the 


*  See  Note  XXVIII. 
1  See  chapter  x. 
1  See  chapter  xii. 


78  A   DIGEST    OF  [PART    II. 

evidence  of  a  witness  who  says  he  perceived  it  by  that 
sense  or  in  that  manner; 

If  it  refers  to  an  opinion,  or  to  the  grounds  on  which 
that  opinion  is  held,  it  must  be  the  evidence  of  the  person 
who  holds  that  opinion  on  those  grounds. 


Chap.  IX.]  the  law  of  evidence.  79 


CHAPTER  IX. 

OF  DOCUMENTARY  E  VI DENCE— PRIMARY  AND 
SECONDARY,  AND  ATTESTED  DOCUMENTS. 

Article  63. 
proof  of  contents  of  documents. 
The  contents  of  documents  may  be  proved  either  by  pri- 
mary or  by  secondary  evidence. 

Article  64. 
primary  evidence. 

Primary  evidence  means  the  document  itself  produced 
for  the  inspection  of  the  Court;  or  an  admission  of  its 
contents  proved  to  have  been  made  by  a  person  whose 
admissions  are  relevant  under  articles  15-20.1 

Where  a  document  is  executed  in  several  parts,  each 
part  is  primary  evidence  of  the  document:2 

Where  a  document  is  executed  in  counterpart,  each, 
counterpart  being  executed  by  one  or  some  of  the  parties 
only,  each  counterpart  is  primary  evidence  as  against  the- 
paities  executing  it.3 


1  Slatterie  v.  Pooley ,  6  M.  &  W.  664. 
J  Roe  d.   West  v    Davis,  7  Ea.  362. 
*  Stowe  v.  Quern er,  L.  R.  5  Ex.  155. 


80  A    DIGEST    OF  [PART   IL 

Where  a  number  of  documents  are  all  made  by  print- 
ing, lithography,  or  photography,  or  any  other  process  of 
such  a  nature  as  in  itself  to  secure  uniformity  in  the 
copies,  each  is  primary  evidence  of  the  contents  of  the 
rest;1  but  where  they  are  all  copies  of  a  common  original, 
no  one  of  them  is  primary  evidence  of  the  contents  of  the 
original.* 

Article  65. 
secondary  evidence. 

Secondary  evidence  means — 

(1)  Examined  copies,  exemplifications,  office  copies,  and 
certified  copies:3 

(2)  Other  copies  made  from  the  original  and  proved  to 
be  correct: 

(3)  Counterparts  of  documents  as  against  the  parties 
who  did  not  execute  them  :4 

(4)  Oral  accounts  of  the  contents  of  a  document  given 
by  some  person  who  has  himself  seen  it. 

Article  66. 
proof  of  documents  by  primary  evidence. 
The  contents  of  documents  must  be  proved  by  primary 
evidence,  except  in  the  cases  hereinafter  mentioned. 


1  R.  v.  Watson,  2  Star.  129.  This  case  was  decided  long 
before  the  invention  of  photography ;  but  the  judgments  de- 
livered by  the  Court  (Ellenborough,  C.  J.,  and  Abbott,  Bayley 
and  Holroyd,  JJ.)  establish  the  principle  stated  in  the  text. 

a  Noden  v.  Murray,  8  Camp.  224. 

'  See  chapter  x. 

4  Munn  v.  Godbold,  8  Bing.  292 


Chap.  IX.]  the  law  of  evidence.  81 

Article  67. 
cases  in  which  secondary  evidence  relating  to 

documents  may  be  given. 
Secondary  evidence  may  be  given  of  the  contents  of  a 
document  in  the  following  cases — 

(a)  "When  the  original  is  shown  or  appears  to  be  in  the 
possession  or  power  of  the  adverse  party, 

and  when,  after  the  notice  mentioned  in  article  68,  he 
does  not  produce  it ;  * 

(b)  When  the  orignial  is  shown  or  appears  to  be  in  the 
possession  or  power  of  a  stranger  not  legally  bound  to 
produce  it,  and  who  refuses  to  produce  it  after  being 
served  with  a  subpoena  duces  tecum,  or  after  having  been 
sworn  as  a  witness  and  asked  for  the  document  and  having 
admitted  that  it  was  in  court; * 

(c)  When  the  original  has  been  destroyed  or  lost,  and 
proper  search  has  been  made  for  it;3 

(d)  When  the  original  is  of  such  a  nature  as  not  to  be 


1  R.  v.  Watson,  2  T.  R.  201.  Entick  v.  Carrington,  19  S.  T. 
1073,  is  cited  by  Mr.  Phillips  as  an  authority  for  this  propo- 
sition. I  do  not  think  it  supports  it,  but  it  shows  the  necessity 
for  the  rule,  as  at  common  law  no  power  existed  to  compel  the 
production  of  documents. 

2  Miles  v.  OuJy,  6  C.  &  P.  732  ;  Mats/on  v.  Downes,  1  A.  & 
E   81. 

3  1  Ph.  Ev.  s.  452  ;  2  Ph.  Ev.  881 ;  T.  E.  (from  Greenleaf ) 
s.  399.  The  loss  may  be  proved  by  an  admission  of  the  party 
or  his  attorney ;  R.  v.  Haworth,  4  C.  &  P.  254. 

Y 


82  A   DIGEST    OF  [PART    II. 

easily  movable,1  or  i3  in  a  country  from  which  it  i3  not 
permitted  to  be  removed ; 3 

(e)  When  the  original  is  a  public  document;8 

(/)  When  the  original  is  a  document  for  the  proof  of 
which  special  provisior  is  made  by  any  Act  of  Parliament, 
or  any  law  in  force  for  the  time  being ;  *  or 

(9)  When  the  originals  consist  of  numerous  documents 
which  cannot  conveniently  be  examined  in  court,  and  the 
fact  to  be  proved  is  the  general  result  of  the  whole  collec- 
tion: provided  that  that  result  is  capable  of  being  ascer- 
tained by  calculation.5 

In  cases  (a),  (b),  (c),  and  {d\  any  secondary  evidence  of 
the  contents  of  the  document  is  admissible.6 

In  case  (e),  the  contents  of  the  document  may  be  proved 
according  to  the  provisions  hereinafter  contained  as  to  the 
proof  of  public  documents. 

In  case  (/),  the  document  may  be  proved  in  the  manner 


1  Mortimer  v.  McCallan,  6  -M.  &  W.  67,  68  (this  was  the  case 
Of  a  libel  written  on  a  wall) ;  Bruce  v.  Nicolopulo,  11  Ex.  183 
(the  case  of  a  placard  posted  on  a  wall). 

2  Alivon  v.  Furnivai,  1  C.  M ,  &  R.  277,  291-2. 
8  See  chapter  x. 

*  Ibid. 

5  Roberts  v.  Doxen,  Peake,  116;  Meyer  v.  Se/ton,  2  Star. 
276.  The  books,  &c,  should  in  such  a  case  be  ready  to  be 
produced  if  required,  yohnson  v.  Kershaw,  1  De  G.  &  Smale, 
264. 

6  If  a  counterpart  is  known  to  exist,  it  is  the  safest  course  to 
produce  or  account  for  it.  Munn  v.  Godbold,  8  Bing.  297 ; 
R.  v.  Castleton,  7  T.  R.  236. 


Chap.  IX.]        the  law  of  evidence.  83 

specially  provided  by  the  law  which  makes  provision  for 
its  proof. 

In  case  (g),  evidence  may  be  given  as  to  the  general  re- 
sult of  the  documents  by  any  person  who  has  examined 
them,  and  who  is  skilled  in  the  examination  of  such  docu- 
ments. 

Questions  as  to  the  existence  of  facts  rendering  second- 
ary evidence  of  the  contents  of  documents  admissible  are 
to  be  decided  by  the  judge. 

Article  68*. 

RULES  AS  TO  NOTICE  TO  PRODUCE. 

Secondary  evidence  of  the  contents  of  the  documents 
referred  to  in  article  67  (a),  may  not  be  given,  unless  the 
party  proposing  to  give  such  secondary  evidence  has, 

if  the  original  is  in  the  possession  or  under  the  control 
of  the  adverse  party,  given  him  such  notice  to  produce  it 
as  the  Court  regards  as  reasonably  sufficient  to  enable  it  to 
be  procured; l  or  has, 

if  the  original  is  in  the  possession  of  a  stranger  to  the 
action,  served  him  with  a  subpoena  duces  tecum  requiring 
its  production;  2 

if  a  stranger  so  served  does  not  produce  the  document, 
and  has  no  lawful  justification  for  refusing  or  omitting  to 
do  so,  his  omission  does  not  entitle  the  party  who  served 


*  See  Note  XXIX. 
1   Dwyer  v.  Collins,  7  Ex.  643. 
5  Newton  v.  Chaplin,  10  C.  B.  56-69. 


84  a  digest  of  [Part  II. 

him  with  the  subpcena  to  give  secondary  evidence  of  the 
contents  of  the  document.1 

Such  notice  is  not  required  in  order  to  render  secondary 
evidence  admissible  in  any  of  the  following  cases — 

(1)  When  the  document  to  be  proved  is  itself  a  notice; 

(2)  When  the  action  is  founded  upon  the  assumption 
that  the  document  is  in  the  possession  or  power  of  the 
adverse  party  and  requires  its  production  ;2 

(3)  When  it  appears  or  is  proved  that  the  adverse  party 
has  obtained  possession  of  the  original  from  a  person  sub- 
poenaed to  produce  it; 3 

(4)  When  the  adverse  party  or  his  agent  has  the  original 
in  court.* 

Article  69.* 
proof  of  execution  of  document  required  by  law 

to  be  attested. 
If  a  document  is  required  by  law  to  be  attested,  it  may 
not  be  used  as  evidence  if  there  be  an  attesting  witness 
alive  sane  and  subject  to  the  process  of  the  Court,  until 
one  attesting  witness  at  least  has  been  called  for  the  pur- 
pose of  proving  its  execution. 


*  See  Note  XXX. 

1  R.  v.  Llanfaethly,  2  E.  &  B.  940. 

2  How  v.  Hall,  14  Ea  247.  In  an  action  on  a  bond,  no 
notice  to  produce  the  bond  is  required.  See  other  illustrations 
in  2  Ph.  Ev.  373;  T.  E.  s.  422. 

3  Leeds  v.  Cook,  4  Esp.  256. 

4  Formerly  doubted,  see  2  Ph.  Ev.  278,  but  so  held  in  Dwyer 
v.  Collins,  7  Ex.  639. 


Chap.  IX.]  the  law  of  evidence.  85 

If  it  is  shown  that  no  such  attesting  witness  is  alive  or 
can  be  found,  it  must  be  proved  that  the  attestation  of  one 
attesting  witness  at  least  is  in  his  handwriting,  and  that 
the  signature  of  the  person  executing  the  document  is  in 
the  handwriting  of  that  person. 

The  rule  extends  to  cases  in  which — 

the  document  has  been  burnt1  or  cancelled;' 

the  subscribing  witness  is  blind ; 3 

the  person  by  whom  the  document  was  executed  is  pre- 
pared to  testify  to  his  own  execution  of  it ; 4 

the  person  seeking  to  prove  the  document  is  prepared  to 
prove  an  admission  of  its  execution  by  the  person  who 
executed  the  deed,  even  if  he  is  a  party  to  the  cause,5  un- 
less such  admission  be  made  for  the  purpose  of,  or  has 
reference  to,  the  cause. 

Article  70.* 
cases  in  which  attesting  witness   need  not  be 

CALLED. 

In  the  following  cases,  and  in  the  case  mentioned  in 
article  88,  but  in  no  others,  a  person  seeking  to  prove  the 
execution  of  a  document  required  by  law  to  be  attested  is 


*  See  Note  XXX. 

1  Gillies  v.  Smither,  2  Star.  R.  528. 

2  Breton  v.  Cope.  Pea.  R.  43 

»   Cronk  v.  Frith,  9  C.  &  P.  197. 

4  R.  v.  Harnngworth,  4  M.  &  S.  853. 

5  Call  v.  Dunning,  4   Ea.  53.     See,  too,    Whyman  v.  Garth, 
I  Ex.  803  ;   Randall  v.  Lynch,  2  Camp.  857. 


86  A   DIGEST   OF  [PART   II. 

not  bound  to  call  for  that  purpose  either  the  party  who 
executed  the  deed  or  any  attesting  witness,  or  to  prove  the 
handwriting  of  any  such  party  or  attesting  witness — 

(1)  When  he  is  entitled  to  give  secondary  evidence  of 
the  contents  of  the  document  under  article  67  (a) ; " 

(2)  When  his  opponent  produces  it  when  called  upon 
and  claims  an  interest  under  it  in  reference  to  the  subject- 
matter  of  the  suit;2 

(3)  When  the  person  against  whom  the  document  is 
sought  to  be  proved  is  a  public  officer  bound  by  law  to 
procure  its  due  execution,  and  who  has  dealt  with  it  as  a 
document  duly  executed.3 

Article  71. 
proof  when  attesting  witness  denies  the  execution. 
If  the  attesting  witness  denies  or  does  not  recollect  the 


1  Cooper  v.  Tamswell,  8  Tau.  450  ;  Poole  v.  Warren,  8  A.  & 
E.  5S8. 

2  Pearce  v.  Hooper,  8  Tau.  60  ;  Rear  den  v.  Minter,  5  M.  & 
G.  204.  As  to  the  sort  of  interest  necessary  to  bring  a  case 
within  this  exception,  see  Collins  v.  Bayntun,  1  Q.  B.  118. 

8  Plumer  v.  Brisco,  11  Q.  B.  46.  Bailey  v.  Bidzuell,  13 
M.  &  W.  73,  would  perhaps  justify  a  slight  enlargement  of  the 
exception,  but  the  circumstances  of  the  case  were  very  pecu- 
liar. Mr.  Taylor  (ss.  1650-1)  considers  it  doubtful  whether 
the  rule  extends  to  instruments  executed  by  corporations,  or 
to  deeds  enrolled  under  the  provisions  of  any  Act  of  Parlia« 
ment,  but  his  authorities  hardly  seem  to  support  his  view :  at 
all  events,  as  to  deed?  by  corporations. 


Chap.  IX.]  the  law  of  evidence.  87 

execution  of  the  document,  its  execution  may  be  proved 
by  other  evidence.1 

Article  72. 
proof  of  document  not  required  by  law  to  be 

attested. 
An  attested  document  not  required  by  law  to  be  attested 
may  in  all  cases  whatever,  civil  or  criminal,  be  proved  as 
if  it  was  unattested.2 


1  "Where  an  attesting  witness  has  denied  all  knowledge  of 
the  matter,  the  case  stands  as  if  there  were  no  attesting  wit- 
ness."     Talbot  v.  Hodson,  7  Tau.  251,  254. 

s  17  &  13  Vict.  c.  125,  s.  26 ;  28  &  29  Vict.  c.  18,  ss.  1,  7. 


88  A  DIGEST   OF  [PART   II 


CHAPTER  X. 
PROOF  OF  PUBLIC  DOCUMENTS. 

Article  73. 
proof  of  public  documents. 
When  a  statement  made  in  any  public  document,  reg- 
ister or  record,  judicial  or  otherwise,  or  in  any  pleading  01 
deposition  kept  therewith,  is  in  issue,  or  is  relevant  to  the 
issue  in  any  proceeding,  the  fact  that  that  statement  is 
contained  in  that  document,  may  be  proved  in  any  of  the 
ways  mentioned  in  this  chapter.1 

Article  74. 
production  of  document  itself. 

The  contents  of  any  public  document  whatever  may  be 
proved  by  producing  the  document  itself  for  inspection 
from  proper  custody,  and  identifying  it  as  being  what  it 
professes  to  be. 

Article  75.* 
examined  copies. 
The  contents  of  any  public  document  whatever  may,  in 


*  See  Note  XXXI  ;  also  Doe  v.  Ross,  7  M.  &  W.  106. 
1  See  articles  36   and  90. 


Chap.  X.]  the  law  of  evidence.  89 

all  cases,  be  proved  by  an  examined  copy  as  hereinafter 
denned. 

An  examined  copy  is  a  copy  proved  by  oral  evidence  to 
have  been  examined  with  the  original  and  to  correspond 
therewith.  The  examination  may  be  made  either  by  one 
person  reading  both  the  original  and  the  copy,  or  by  two 
persons,  one  reading  the  original  and  the  other  the  copy, 
and  it  is  not  necessary  (except  in  peerage  cases1),  that 
each  should  alternately  read  both.2 

Article  76. 
general  records  of  the  realm. 
Any  record  under  the  charge  and  superintendence  of  the 
Master  of  the  Rolls  for  the  time  being,  may  be  proved  by 
a  copy,  certified  as  a  true  and  authentic  copy  by  the  dep- 
uty keeper  of  the  records  or  one  of  the  assistant  record 
keepers,  and  purporting  to  be  sealed  or  stamped  with  the 
seal  of  the  Record  Office.3 

Article  77.* 
exemplifications. 
An  exemplification  is  a  copy  of  a  record  set  out  either 
under  the  Great  Seal  or  under  the  Seal  of  a  Court. 


*  See  Note  XXXII. 

1  Slane  Peerage  Case,  5  C.  &  F.  42. 

2  2  Ph.  Ev   200,  231  ;  T.  E.  ss.  1379.  1389;   R.  N.  P.  113, 

3  1  1  2  Vict.  c.  94,  ss.  1,  12.  13. 


90  a  digest  of  [Part  11. 

A  copy  made  by  an  officer  of  the  Court,  bound  by  law 
to  mak  e  it.  is  equivalent  to  an  exemplification,  though  it 
is  sometimes  called  an  office  copy. 

An  exemplification  is  equivalent  to  the  original  docu- 
ment exemplified. 

Article  78.* 

A  copy  made  by  an  officer  of  the  Court,  who  is  author- 
ized to  make  it  by  a  rule  of  Court,  but  not  required  by  law 
to  make  it,  is  regarded  as  equivalent  to  an  exemplification 
in  the  same  Cause  and  Court,  but  in  other  Causes  or 
Courts  it  is  not  admissible  unless  it  can  be  proved  as  an 
examined  copy. 

Article  79. 
certified  copies. 
It  is  provided  by  many  statutes  that  various  certificates, 
official  and  public  documents,  documents  and  proceedings 
of  corporations,  and  of  joint  stock  and  other  companies, 
and  certified  copies  of  documents,  by-laws,  entries  in 
registers  and  other  books,  shall  be  receivable  in  evidence 
of  certain  particulars  in  Courts  of  Justice,  provided  they 
are  respectively  authenticated  in  the  manner  prescribed  by 
such  statutes.1 


*  See   Note  XXXII. 
1  8  &   9  Vict.  c.    113 •  preamble.      Many    such  statutes  are 
specified  in  T.   E.  s.   1440  and  following  sections.     See,   too, 
R.  N.  P.  114-5. 


Oh  A  P.  X.]  THE   LAW   OF   EVIDENCE.  91 

"Whenever,  by  virtue  of  any  such  provision,  any  such 
certificate,  or  certified  copy  as  aforesaid,  is  receivable  in 
proof  of  any  particular  in  any  Court  of  Justice,  it  is  ad- 
missible as  evidence  if  it  purports  to  be  authenticated  in 
the  manner  prescribed  by  law  without  proof  of  any  stamp, 
seal,  or  signature  required  for  its  authentication,  or  of  the 
official  character  of  the  person  who  appears  to  have 
signed  it.1 

Whenever  any  book  or  other  document  is  of  such  a 
public  nature  as  to  be  admissible  in  evidence  on  its  mere 
production  from  the  proper  custody,  and  no  statute  ex- 
ists which  renders  its  contents  provable  by  means  of  a 
copy,  any  copy  thereof  or  extract  therefrom  is  admissible 
in  proof  of  its  contents,2  provided  it  purport  to  be  signed 
and  certified  as  a  true  copy  or  extract  by  the  officer  to 
whose  custody  the  original  is  intrusted.  Every  such  officer 
must  furnish  such  certified  copy  or  extract  to  any  person. 


1  Ibid.,  s.  1.  I  believe  the  above  to  be  the  effect  of  the  pro- 
vision, but  the  language  is  greatly  condensed.  Some  words  at 
the  end  of  the  section  are  regarded  as  unmeaning  by  several 
text  writers.  See  e.  g.,  R.  N.  P.  116  ;  2  Ph.  Ev.  241  ;  T.  E.  s. 
7,  note  1.  Mr.  Taylor  says  that  the  concluding  words  of  the 
section  were  introduced  into  the  Act  while  passing  through  the 
House  of  Commons.  He  adds,  they  appear  to  have  beei 
copied  from  1  &  2  Vict,  c  94,  s.  13  (see  art.  76)  "  by  some  hon 
orable  member  who  did  not  know  distinctly  what  he  was 
about."     They  certainly  add  nothing  to  the  sense. 

2  The  words  "  provided  it  be  proved  to  be  an  examined 
copy  or  extract  or."  occur  in  the  Act,  but  are  here  omitted 
because  their  effect  is  given  in  article  75. 


92  A   DIGEST   OF  [PaRT    II. 

applying  at  a  reasonable  time  for  the  same,  upon  payment 
of  a  reasonable  sum  for  the  same,  not  exceeding  four- 
pence  for  every  folio  of  ninety  words.1 


Article  80. 

DOCUMENTS    ADMISSIBLE    THROUGHOUT    THE    QUEEN'S 
DOMINIONS. 

If,  by  any  law  in  force  for  the  time  being,  any  document 
is  admissible  in  evidence  of  any  particular,  either  in  courts 
of  justice  in  England  and  "Wales  or  in  courts  of  justice  in 
Ireland,  without  proof  of  the  seal,  or  stamp,  or  signa- 
ture authenticating  the  same,  or  of  the  judicial  or  official 
character  of  the  person  appearing  to  have  signed  the 
same,  that  document  is  also  admissible  in  evidence  to  the 
same  extent  and  for  the  same  purpose,  without  such  proof 
as  aforesaid,  in  any  court  or  before  any  judge  in  any  part 
of  the  Queen's  dominions  except  Scotland.2 


1  14  &  15  Vict.  c.  99,  s.  14. 

*  Consolidates  14  &  15  Vict.  c.  99,  ss.  9,  10,  11,  19.  Sec.  » 
provides  that  documents  admissible  in  England  shall  be  admis- 
sible in  Ireland ;  sec.  10  is  the  converse  of  9  ;  sec.  11  enacts 
that  documents  admissible  in  either  shall  be  admissible  in  the 
"  British  Colonies  ;  "  and  sec.  19  defines  the  British  Colonies 
as  including  India,  the  Channel  Islands,  the  Isle  of  Man,  and 
"all  other  possessions"  of  the  British  Crown,  wheresoever 
and  whatsoever.  This  cannot  mean  to  include  Scotland, 
though  the  literal  sense  of  the  words  would  perhaps  extend 
to  it. 


Chap.  X.]  the  law  of  evidence.  93 

Article  81. 
queen's  printers'  copies. 
The  contents  of  Acts  of  Parliament,  not  being  public 
Acts,  may  be  proved  by  copies  thereof  purporting  to  be 
printed  by  the  Queen's  printers ; 
The  journals  of  either  House  of  Parliament;  and 
Koyal  proclamations, 
may  be  proved  by  copies  thereof  purporting  to  be  printed 
by  the  printers  to  the  Crown  or  by  the  printers  to  either 
House  of  Parliament.1 

Article  82. 
proof  of  irish  statutes. 
The  copy  of  the  statutes  of  the  kingdom  of  Ireland, 
enacted  by  the  Parliament  of  the  same  prior  to  the  union 
of  the  kingdoms  of  Great  Britain  and  Ireland,  and  printed 
and  published  by  the  printer  duly  authorized  by  King 
George  HI.  or  any  of  his  predecessors,  is  conclusive  evi- 
dence of  the  contents  of  such  statutes.2 

Article  83. 
proclamations,  orders  in  council,  &c 
The  contents  of  any  proclamation,  order  or  regulation 
issued  at  any  time  by  Her  Majesty  or  by  the  Privy  Coun- 
cil, and  of  any  proclamation,  order,  or  regulation  issued 
at  any  time  by  or  under  the  authority  of  any  such  depart- 


*  8  &  9  Vict.  c.  113,  s   3.       Is  there  any  difference  between 
the  Queen's  printers  and  the  printers  to  the  Crown? 
*     41    Geo.  III.  c.  90,  s.  9. 


94  A  DIGEST    OF  [PART   II. 

ment  of  the  Government  or  officer  as  is  mentioned  in  the 
first  column  of  the  note  l  hereto,  may  be  proved  in  all  or 
any  of  the  notes  hereinafter  mentioned  ;  that  is  to  say — 


Column  1. 


Name   of  Department   or 
Officer. 


The  Commissioners  of  the 
Treasury. 

The  Commissioners  for  exe- 
cuting the  Office  of  Lord 
High  Admiral. 


Secretaries  of  State. 

Committee  of  Privy   Council 
for  Trade. 


The  Poor  Law  Board. 


The  Postmaster  General. 


(Schedule  to  81  &  32  Vict.  c.  87. 
s.  6.) 


Column  2. 


Names  of  Certifying  Officers. 


Any  Commissioner,  Secretary 
or  Assistant  Secretary  of 
the  Treasury. 

Any  of  the  Commissioners 
for  executing  the  Office  of 
Lord  High  Admiral  or 
either  of  the  Secretaries  to 
the  said  Commissioners. 

Any  Secretary  or  Under-Sec- 
retary of  State. 

Any  Member  of  the  Commit- 
tee of  the  Privy  Council 
for  Trade  or  any  Secretary 
or  Assistant  Secretary  of 
the  said  Committee. 

Any  Commissioner  of  the 
Poor  Law  Board  or  any 
Secretary  or  Assistant  Sec- 
retary of  the  said  Board. 

Any  Secretary  or  Assistant 
Secretary  of  the  Post  Office 
(83  &  34  Vic.  c.  79,  s.  21). 
See  also  34  &  35  Vict.  c.  70, 


Chap.  X.]  the  law  of  evidence.  95' 

(1)  By  the  production  of  a  copy  of  the  Gazette  pur- 
porting to  contain  such  proclamation,  order,  or  regulation : 

(2)  By  the  production  of  a  copy  of  such  proclamation, 
order,  or  regulation  purporting  to  be  printed  by  the  G-ov- 
ernment  printer,  or,  where  the  question  arises  in  a  court 
in  any  British  colony  or  possession,  of  a  copy  purporting 
to  be  printed  under  the  authority  of  the  legislature  of 
such  British  colony  or  possession  : 

(3)  By  the  production,  in  the  case  of  any  proclamation, 
order  or  regulation  issued  by  Her  Majesty  or  by  the  Privy 
Council,  of  a  copy  or  extract  purporting  to  be  certified  to 
be  true  by  the  Clerk  of  the  Privy  Council  or  by  any  one 
of  the  Lords  or  others  of  the  Privy  Council,  and,  in  the 
case  of  any  proclamation,  order,  or  regulation  issued  by 
or  under  the  authority  of  any  of  the  said  departments  or 
officers,  by  the  production  of  a  copy  or  extract  purporting 
to  be  certified  to  be  true  by  the  person  or  persons  specified 
in  the  second  column  of  the  said  note  in  connection  with 
such  department  or  officer. 

Any  copy  or  extract  made  under  this  provision  may  be 
in  print  or  in  writing,  or  partly  in  print  and  partly  in 
writing. 

No  proof  is  required  of  the  handwriting  or  official  posi- 
tion of  any  person  certifying,  in  pursuance  of  this  pro- 
vision, to  the  truth  of  any  copy  of  or  extract  from  any 
proclamation,  order,  or  regulation.1 

Subject  to  any  law  that  may  be  from  time  to  time  made 

1  81  &  32  Vict.  c.  37,  s.  2. 


96  A   DIGEST    OF  [PART   IL 

by  the  legislature  of  any  British  colony  or  possession,  this 
provision  is  in  force  in  every  such  colony  and  possession.1 

Art  rex  e  84. 

FOREIGN   AND   COLONIAL   ACTS  OF   STATE,  JUDGMENTS,  &C. 

All  proclamations,  treaties,  and  other  acts  of  state  of 
any  foreign  state,  or  of  any  British  colony,  and  all  judg- 
ments, decrees,  orders,  and  other  judicial  proceedings  of 
any  court  of  justice  in  any  foreign  state  or  in  any  British 
colony,  and  all  affidavits,  pleadings,  and  other  legal  docu- 
ments filed  or  deposited  in  any  such  court,  may  be  proved 
either  by  examined  copies,  or  by  copies  authenticated  as 
hereinafter  mentioned ;  that  is  to  say — 

If  the  document  sought  to  be  proved  be  a  proclamation, 
treaty,  or  other  act  of  state,  the  authenticated  copy  to  be 
admissible  in  evidence  must  purport  to  be  sealed  with  the 
seal  of  the  foreign  state  or  British  possession  to  which  the 
original  document  belongs. 

And  if  the  document  sought  to  be  proved  be  a  judg- 
ment, decree,  order,  or  other  judicial  proceeding  of  any 
foreign  court  in  any  British  possession,  or  an  affidavit, 
pleading  or  other  legal  document  filed  or  deposited  in  any 
such  court,  the  authenticated  copy  to  be  admissible  in 
evidence  must  purport  either  to  be  sealed  with  the  seal  of 
the  foreign  or  other  court  to  which  the  original  document 
belongs,  or,  in  the  event  of  such  court  having  no  seal,  to 


i  Ibid.,  s.  8. 


Chap.  X.]  the  law  of  evidence.  97 

be  signed  by  the  judge,  or,  if  there  be  more  than  one 
judge,  by  any  one  of  the  judges  of  the  said  court,  and 
such  judge  must  attach  to  his  signature  a  statement  in 
writing  on  the  said  copy  that  the  court  whereof  he  is 
judge  has  no  seal; 

If  any  of  the  aforesaid  authenticated  copies  purports  to 
be  sealed  or  signed  as  hereinbefore  mentioned,  it  is  admis- 
sible in  evidence  in  every  case  in  which  the  original  docu- 
ment could  have  been  received  in  evidence,  without  any 
proof  of  the  seal  where  a  seal  is  necessary,  or  of  the  signa- 
ture, or  of  the  truth  of  the  statement  attached  thereto 
where  such  signature  and  statement  are  necessary,  or  of 
the  judicial  character  of  the  person  appearing  to  have 
made  such  signature  and  statement.1 

Colonial  laws  assented  to  by  the  governors  of  colonies, 
and  bills  reserved  by  the  governors  of  such  colonies  for 
the  signification  of  Her  Majesty's  pleasure,  and  the  fact 
(as  the  case  may  be)  that  such  law  has  been  duly  and 
properly  passed  and  assented  to,  or  that  such  bill  has  been 
duly  and  properly  passed  and  presented  to  the  governor, 
may  be  proved  (prima  facie)  by  a  copy  certified  by  the 
clerk  or  other  proper  officer  of  the  legislative  body  of  the 
colony,  to  be  a  true  copy  of  any  such  law  or  bill.  Any 
proclamation  purporting  to  be  published  by  authority  of 
the  governor  in  any  newspaper  in  the  colony  to  which  such 
law  or  bill  relates,  and  signifying  Her  Majesty's  disallow- 


14  &  15  Vict.  c.  99,  s.  7. 


98  a  digest  of  [Part  II. 

ance  of  any  such  colonial  law,  or  Her  Majesty's  assent  to 
any  such  reserved  bill,  is  prima  facie  proof  of  such  disal- 
lowance or  assent.1 


1  28  &  29  Vict.  c.  68,  s.  6.  "Colony"  in  this  paragraph 
means  " all  her  Majesty's  possessions  abroad"  having  a  legis- 
lature, "except  the  Channel  Islands,  the  Isle  of  Man,  and 
India."  "  Colony  "  in  the  rest  of  the  article  includes  those 
places. 


Chap.  XL]         the  law  or  evidence.  29 


CHAPTER   XL 

PRESUMPTIONS  AS  TO  DOCUMENTS. 

Article  85. 

presumption  as  to  date  of  a  document. 

When  any  document  bearing  a  date  has  been  proved,  it 
is  presumed  to  have  been  made  on  the  day  on  which  it 
bears  date,  and  if  more  documents  than  one  bear  date  on 
the  same  day,  they  are  presumed  to  have  been  executed  in 
the  order  necessary  to  effect  the  object  for  which  they  were 
executed,  but  independent  proof  of  the  correctness  of  the 
date  will  be  required,  if  the  circumstances  are  such  that 
collusion  as  to  the  date  might  be  practised,  and  would,  if 
practised,  injure  any  person,  or  defeat  the  objects  of  any 
law.1 

Illustrations. 

(a)  An  instrument  admitting  a  debt,  and  dated  before  the  act 
of  bankruptcy,  is  produced  by  a  bankrupt's  assignees  to 
prove  the  petitioning  creditor's  debt.  Further  evidence  of 
the  date  of  the  transaction  is  required  in  order  to  guard 
against  collusion  between  the  assignees  and  the  bankrupt,  to 


1  1  Ph.  Ev.  482-8;  T.  E.  s.  137  ;   Best,  s.  408. 


100  A  DIGEST    OF  [PART   II. 

the  prejudice  of  creditors  whose  claims  date  from  the  inter- 
val between  the  act  of  bankruptcy  and  the  adjudication.1 
(£)  In  a  petition  for  damages  on  the  ground  of  adultery,  letters 
are  produced  between  the  husband  and  wife,  dated  before 
the  alleged  adultery,  and  showing  that  they  were  then  on 
affectionate  terms.  Further  evidence  of  the  date  is  required 
to  prevent  collusion  to  the  prejudice  of  the  person  petitioned 
against.2 

Article  86. 

presumption  as  to  stamp  op  a  document. 

When  any  document  is  not  produced  after  due  notice  to 

produce,  and  after  being  called  for,  it  is  presumed  to  have 

been  duly  stamped,3  unless  it  be  shown  to  have  remained 

unstamped  for  some  time  after  its  execution.4 


Article  87. 

presumption  as  to  sealing  and  delivery  of  deeds. 

When  any  document  purporting  to  be,  and  stamped  as, 

a  deed,  appears  or  is  proved  to  be  or  to  have  been  signed 

and  duly  attested,  it  is  presumed  to  have  been  sealed  and 


1  Anderson  v.  Weston,  6  Bing.  N.  C.  802  ;  Sinclair  v.  Bag- 
gallay,±  M.  &  W.  318. 

2  Houlston  v.  Smith   2  C.  &  P.  24. 

8  Closmadeuc  v.  Carrel,  18  C.  B.  44.  In  this  case  the  growth 
of  the  rule  is  traced,  and  other  cases  are  referred  to,  in  the 
judgment  of  Creswell,  J. 

4  Marine  Investment  Company  v.  Haviside,  L.  R.  5  E.  &  I. 
App.  624 


Chap.  XI.]  the  law  of  evidence.  101 

delivered,    although    no    impression  of    a  seal    appears 
thereon.1 

Article  88. 

presumption  as  to  documents  thirty  tears  old. 

Where  any  document  purporting  or  proved  to  be  thirty 
years  old  is  produced  from  any  custody  which  the  judge  in 
the  particular  case  considers  proper,  it  is  presumed  that 
the  signature  and  every  other  part  of  such  document 
which  purports  to  be  in  the  handwriting  of  any  particular 
person  is  in  that  person's  handwriting,  and,  in  the  case  of 
a  document  executed  or  attested,  that  it  was  duly  executed 
and  attested  by  the  persons  by  whom  it  purports  to  be 
executed  and  attested;  and  the  attestation  or  execution 
need  not  be  proved,  even  if  the  attesting  witness  is  alive 
and  in  court. 

Documents  are  said  to  be  in  proper  custody  if  they  are 
in  the  place  in  which,  and  under  the  care  of  the  person 
with  whom,  they  would  naturally  be ;  but  no  custody  13 
improper  if  it  is  proved  to  have  had  a  legitimate  origin,  or 
if  the  circumstances  of  the  particular  case  are  such  as  to 
render  such  an  origin  probable.2 

Article  89. 
presumption  as  to  alterations. 
No  person  producing  any  document  which,  upon  its  face> 


1  Halls.  Bainb ridge,   12  Q.    B.   699—710.     Re  Sandilands, 
L.  R   6  C    P.  411. 

2  2  Ph.  Ev.  245-8 ;  Starkie,  521-6  ;  T.  E.  s.  74.  and  ss.  593- 
601  ;  Best,  s.  220. 


102  A   DIGEST    OF  [PART   IT. 

appears  to  have  been  altered  in  a  material  part,  can  claim 
under  it  flie  enforcement  of  any  right  created  by  it,  unless 
the  alteration  was  made  before  the  completion  of  the 
document,  or  with  the  consent  of  the  party  to  be  charged 
under  it  or  his  representative  in  interest. 

This  rule  extends  to  cases  in  which  the  alteration  was 
made  by  a  stranger  whilst  the  document  was  in  the  cus- 
tody of  the  person  producing  it,  but  without  his  knowl- 
edge or  leave.1 

Alterations  and  interlineations  appearing  on  the  face  of 
a  deed  are,  in  the  absence  of  all  evidence  relating  to  them, 
presumed  to  have  been  made  before  the  deed  was  com- 
pleted.2 

Alterations  and  interlineations  appearing  on  the  face  of 
a  will  are,  in  the  absence  of  all  evidence  relating  to  them, 
presumed  to  have  been  made  after  the  execution  of  the 
will.8 

There  is  no  presumption  as  to  the  time  when  alterations 
and  interlineations,  appearing  on  the  face  of  writings  not 
under  seal,  were  made*  except  that  it  is  presumed  that 
they  were  so  made  that  the  making  would  not  constitute 
an  offence.5 


1  Pigot's  Case,  11  Rep.  47  ;  Davidson  v.  Cooper,  11  M.  &  W. 
778;  13  M.  &  W.  343;  Aldous  v.  Cornweil,  L  R.  3  Q.  B.  573. 
This  qualifies  one  of  the  resolutions  in  Pigot's  Case.  The 
judgment  reviews  a  great  number  of  authorities  on  the  subject. 

8  Doe  v.  Catomore,  16  Q.  B.  745. 

3  Simmons  v.  Rudall,  1  Sim.  (N.  S.)  136. 

*  Knight  v.  Clements,  8  A.  &  E.  215. 

6  R.  v.  Gordon,  Dearsley  &  Pearce.  592. 


Chap.  XI.]  the  law  of  evidence  103 

An  alteration  is  said  to  be  material  when,  if  it  had  been 
made  with  the  consent  of  the  party  charged,  it  would 
have  affected  his  interest  or  varied  his  obligations  in  any 
way  whatever. 

An  alteration  which  in  no  way  affects  the  rights  of  the 
parties  or  the  legal  effect  of  the  instrument,  is  immaterial.1 


1  This  appears  to  be  the  result  of  many  cases  referred  to  in 
T.  E.  ss.  1619-20;  see  also  the  judgments  in  Davidson  y. 
Cooper  and  Aldous  v.  Cornwell  referred  to  above. 


104  a  digest  oy  [Part  IT. 


CHAPTER  XIL 

OF  THE  MODTFICA  TION  AND  TNTERPRETA  TION 

OF  DOCUMENTARY  EVIDENCE  BY  ORAL 

EVIDENCE. 

Article  90.* 
evidence  of  terms  of  contracts,  grants,  and  other 
dispositions  of  property  reduced  to  a  documen- 
tary form. 
"When  any  judgment  of  any  Court  or  any  other  judicial 
or  official  proceeding,  or  any  contract  or  grant,  or  any 
other  disposition  of  property,  has  been  reduced  to  the 
form  of  a  document  or  series  of  documents,  no  evidence 
may  be  given  of  such  judgment  or  proceeding,  or  of  the 
terms  of  such  contract,  grant,  or  other  disposition  of 
property,  except  the  document  itself,  or  secondary  evi- 
dence of  its  contents  in  cases  in  which  secondary  evidence 
is  admissible  under  the  provisions  hereinbefore  contained.1 
Nor  may  the  contents  of  any  such  document  be  contra- 
dicted, altered,  added  to,  or  varied  by  oral  evidence. 


*  See  Note  XXXIII. 
1  Illustrations  (a)  and  (3). 


Chap.  XII.]        the  law  of  evidence.  105 

Provided  that  any  of  the  following  matters  may  be 
proved — 

(1)  Fraud,  intimidation,  illegality,  want  of  due  execu- 
tion, want  of  capacity  in  any  contracting  party,  the  fact 
that  it  is  wrongly  dated,1  want  or  failure  of  consideration, 
or  mistake  in  fact  or  law,  or  any  other  matter  which,  if 
proved,  would  produce  any  effect  upon  the  validity  of 
any  document,  or  of  any  part  of  it,  or  which  would  entitle 
any  person  to  any  judgment,  decree,  or  order  relating 
thereto.2 

(21  The  existence  of  any  separate  oral  agreement,  as  to 
anv  matter  on  which  a  document  is  silent,  and  which  is 
not  inconsistent  with  its  terms,  if  from  the  circumstances 
of  the  case  the  Court  infers  that  the  parties  did  not  intend 
the  document  to  be  a  complete  and  final  statement  of  the 
whole  of  the  transaction  between  them.3 

(3)  The  existence  of  any  separate  oral  agreement,  con- 
stituting a  condition  precedent  to  the  attaching  of  any 
obligation  under  any  such  contract,  grant  or  disposition  of 
property.4 

(4)  The  existence  of  any  distinct  subsequent  oral  agree- 
ment to  rescind  or  modify  any  such  contract,  grant  or 


1  Reffells.  Reffell,  L.  R.  1  P.  &  D.  139.  Mr.  Starkie  ex 
tends  this  to  mistakes  in  some  other  formal  particulars.  8  Star. 
Ev.  YST-3. 

2  Illustration  (c). 

8  Illustrations  (</)  and  (e). 
*  Illustrations  (/)  and  (g). 


106  A   DIGEST    OF  [PART   II. 

disposition  of  property,  provided  that  such  agreement  is 
not  invalid  under  the  Statute  of  Frauds,  or  otherwise.1 

(5)  Any  usage  or  custom  by  which  incidents  not  ex- 
pressly mentioned  in  any  contract  are  annexed  to  contracts 
of  that  description;  unless  the  annexing  of  such  incident 
to  such  contract  would  be  repugnant  to  or  inconsistent 
with  the  express  terms  of  the  contract.2 

Oral  evidence  of  a  transaction  is  not  excluded  by  the 
fact  that  a  documentary  memorandum  of  it  was  made,  if 
such  memorandum  was  not  intended  to  have  legal  effect 
as  a  contract,  or  other  disposition  of  property.3 

Oral  evidence  of  the  existence  of  a  legal  relation  is  not 
excluded  by  the  fact  that  it  has  been  created  by  a  docu- 
ment, when  the  fact  to  be  proved  is  the  existence  of  the 
relationship  itself,  and  not  the  terms  on  which  it  was  es- 
tablished or  is  carried  on.4 

The  fact  that  a  person  holds  a  public  office  need  not  be 
proved  by  the  production  of  his  written  or  sealed  appoint- 
ment thereto,  if  he  is  shown  to  have  acted  in  it.5 

Illustrations, 
(a)  A  policy  of  insurance  is  effected  on  goods  "  in  ships  from 
Surinam  to  London."     The  goods  are  shipped  in  a  particu- 
lar ship,  which  is  lost. 


1  Illustration  (A). 

2  Wigglesworth  v.    Dallison,   and    note    thereto,  S.   L.  C. 
598-628. 

3  Illustration  («). 

4  Illustration  (k). 

5  See  authorities  collected  in  1  Ph.  Ev   449-50  ;   T.  E.  s.  139. 


Chap.  XTT.]        the  latv  of  evidence.  107 

The  fact  that  that  particular  ship  was  orally  excepted  from  the 
policy  cannot  be  proved.1 

(b)  An  estate  called  Gotton  Farm  is  conveyed  by  a  deed  which 
describes  it  as  consisting  of  the  particulars  described  in  the 
first  division  of  a  schedule  and  delineated  in  a  plan  on  the 
margin  of  the  schedule. 

Evidence  cannot  be  given  to  show  that  a  close  not  mentioned 
in  the  schedule  or  delineated  in  the  plan  was  always  treated 
as  part  of  Gotton  Farm,  and  was  intended  to  be  conveyed 
by  the  deed.* 

(c)  A  institutes  a  suit  against  B  for  the  specific  performance  of 
a  contract,  and  also  prays  that  the  contract  may  be  reformed 
as  to  one  of  its  provisions,  as  that  provision  was  inserted  in 
it  by  mistake. 

A  may  prove  that  such  a  mistake  was  made  as  would  entitle 
him  to  have  the  contract  reformed  s 

(d)  A  lets  land  to  B,  and  they  agree  that  a  lease  shall  be  given 
by  A  to  B. 

Before  the  lease  is  given,  B  tells  A  that  he  will  not  sign  it  un- 
less A  promises  to  destroy  the  rabbits.  A  does  promise. 
The  '.ease  is  afterwards  granted,  and  reserves  sporting  rights 
to  A,  but  does  not  mention  the  destruction  of  the  rabbits. 
B  may  prove  A's  verbal  statement  as  to  the  rabbits.* 

(<?)  A  &  B  agree  verbally  that  B  shall  take  up  an  acceptance 
of  A's,  and  that  thereupon  A  and  B  shall  make  a  written 
agreement  for  the  sale  of  certain  furniture  by  A  to  B.  B 
does  not  take  up  the  acceptance.  A  may  prove  the  verbal 
agreement  that  he  should  do  so.5 


1    Weston  v.  Eames.  1  Tau.  115. 

*  Barton  v.  Dawes,  10  C.  B.  261-285. 

3  Story's  Equity  Jurisprudence,  chap.  v.  ss.  153-162. 

*  Morgan  v.  Griffiths,  L.  R.    6  Ex.   70 ;  and  see  Angell  v. 
Duke.  L.  R.  10  Q.  B.  174. 

6  Lindley  v.  Lacey.  17  C.  B.  (N.  S.)  578. 


108  A   DIGEST    OF  [PART    II. 

(/)  A  &  B  enter  into  a  written  agreement  for  the  sale  of  an 
interest  in  a  patent,  and  at  the  same  time  agree  verbally 
that  the  agreement  shall  not  come  into  force  unless  C  ap- 
proves of  it.  C  does  not  approve.  The  party  interested 
may  show  this.1 

(g )  A,  a  farmer,  agrees  in  writing  to  transfer  to  B,  another 
farmer,  a  farm  which  A  holds  of  C.  It  is  verbally  agreed 
that  the  agreement  is  to  be  conditional  on  C's  consent.  B 
sues  A  for  not  transferring  the  farm.  A  may  prove  the  con- 
dition as  to  Cs  consent  and  the  fact  that  he  does  not  con- 
sent.2 

(h)  A  agrees  in  writing  to  sell  B  14  lots  of  freehold  land  and 
make  a  good  title  to  each  of  them.  Afterwards  B  consents 
to  take  one  lot  though  the  title  is  bad.  Apart  from  the 
Statute  of  Frauds  this  agreement  might  be  proved.8 

(/')  A  sells  B  a  horse,  and  verbally  warrants  him  quiet  in  har- 
ness. A  also  gives  B  a  paper  in  these  words:  "  Bought  of 
A  a  horse  for  11.  2s.  6</." 

B  may  prove  the  verbal  warranty.* 

(/')  The  question  is,  whether  A  gained  a  settlement  by  occu- 
pying and  paying  rent  for  a  tenement.  The  facts  of  occu- 
pation and  payment  of  rent  may  be  proved  by  oral  evidence, 
although  the  contract  is  in  writing.5 

Article  91.* 
what  evidence  may  be  given  for  the  interpretation 
of  documents. 
(1)  Putting  a  construction  upon  a  document  means  as- 

*  See  Note  XXXIV. 
»  Pym  v.  Campbell,  6  E   &  B.  370 
2    Wallis  v.  Littell,  11  C.  B.  (N.  S.)  359. 
»  Goss  v.  Lord  Nugent,  5  B.  &  Ad.  58,  65. 

*  Allen  v.  Prink  4  M.  &  W    140. 

*  R.  v.  Hull,  7  B.  &  C.  611. 


Chap.  XII.]        the  law  of  evidence.  109 

certaining  the  meaning  of  the  signs  or  words  made  upon 
it,  and  their  relation  to  facts.1 

(2)  In  order  to  ascertain  the  meaning  of  the  signs  and 
words  made  upon  a  document,  oral  evidence  may  be  given 
of  the  meaning  of  illegible  or  not  commonly  intelligible 
characters,  of  foreign,  obsolete,  technical,  local,  and  prov- 
incial expressions,  of  abbreviations,  and  of  common  words 
which,  from  the  context,  appear  to  have  been  used  in  a 
peculiar  sense;  but  evidence  may  not  be  given  to  show 
that  common  words,  the  meaning  of  which  is  plain,  and 
which  do  not  appear  from  the  context  to  have  been  used 
in  a  peculiar  sense,  were  in  fact  so  used.2 

(3)  If  the  words  of  a  document  are  so  defective  or  am- 
biguous as  to  be  unmeaning,  no  evidence  can  be  given  to 
show  what  the  author  of  the  document  intended  to  say.3 

(4)  In  order  to  ascertain  the  relation  of  the  words  of  a 
document  to  facts,  every  fact  may  be  proved  to  which  it 
refers,  or  may  probably  have  been  intended  to  refer,4  or 
which  identifies  any  person  or  thing  mentioned  in  it.5 
Such  facts  are  hereinafter  called  surrounding  circum- 
-stances. 

(5)  If  the  words  of  a  document  have  a  proper  legal 
meaning,  and  also  a  less  proper  meaning,  they  must  be 


1  Illustrations  (a)  (6)  (c). 

2  Illustration  (d) 

3  Illustrations  (<r)  and  (/). 
*  See  all  the  Illustrations. 
6  Illustration  (g). 


110  A   DIGEST    OF  [PART    II. 

deemed  to  have  their  proper  legal  meaning,  unless  such  a 
construction  would  be  unmeaning  in  reference  to  sur- 
rounding circumstances,  in  which  case  they  may  be  inter- 
preted according  to  their  less  proper  meaning.1 

(6)  If  the  document  has  one  distinct  meaning  in  refer- 
ence to  surrounding  circumstances,  it  must  be  construed 
accordingly,  and  evidence  to  show  that  the  author  intended 
to  express  some  other  meaning  is  not  admissible.2 

(7)  If  the  document  applies  in  part  but  not  with  accu- 
racy to  surrounding  circumstances,  the  Court  may  draw 
inferences  from  the  surrounding  circumstances  as  to  the 
meaning  of  the  document,  whether  there  is  more  than 
one  or  only  one  thing  or  person  to  whom  or  to  which  the 
inaccurate  description  may  apply.  In  such  cases  no  evi- 
dence can  be  given  of  statements  made  by  the  author  of 
the  document  as  to  his  intentions  in  reference  to  the  mat- 
ter to  which  the  document  relates,  though  evidence  may 
be  given  as  to  his  circumstances,  and  as  to  his  habitual  use 
of  language  or  names  for  particular  persons  or  things.3 

(8)  If  the  language  of  the  document,  though  plain  in 
itself,  applies  equally  well  to  more  objects  than  one,  evi- 
dence may  be  given  both  of  surrounding  circumstances 
and  of  statements  made  by  any  party  to  the  document  as 
to  his  intentions  in  reference  to  the  matter  to  which  the 
document  relates.4 


1   Illustration  (A). 

*  Illustration  (*'). 

•  Illustrations  (£)  (/)  {m\ 
4  Illustration  (»). 


Chap.  XII.]         the' law  of  evidence.  Ill 

(9)  If  the  document  is  of  such  a  nature  that  the  Court 
will  presume  that  it  was  executed  with  any  other  than  its 
apparent  intention,  evidence  may  be  given  to  show  that  it 
was  in  fact  executed  with  its  apparent  intention.1 
Illustrations. 

(a)  A  lease  contains  a  covenant  as  to  "  ten  thousand "  rab- 
bits. Oral  evidence  to  show  that  a  thousand  meant,  in  rela- 
tion to  rabbits,  1200,  is  admissible.2 

(b)  A  sells  to  B  "  1170  bales  of  Gambier."  Oral  evidence  is 
admissible  to  show  that  a  "  bale  "  of  gambier  is  a  package 
compressed,  and  weighing  2  cwt.8 

(c)  A,  a  sculptor,  leaves  to  B  "  all  the  marble  in  the  yard,  the 
tools  in  the  shop,  bankers,  mod  tools  for  carving."  Evidence 
to  show  whether  "mod"  meant  models,  moulds,  or  model- 
ing-tools, and  to  show  what  bankers  are,  may  be  given. 

(d)  Evidence  may  not  be  given  to  show  that  the  word  "boats," 
in  a  policy  of  insurance,  means  "  boats  not  slung  on  the  out- 
side of  the  ship  on  the  quarter."4 

(e)  A  leaves  an  estate  to  K,  L,  M,  etc.,  by  a  will  dated  before 
1838.  Eight  years  afterwards  A  declares  that  by  these  let- 
ters he  meant  particular  persons.  Evidence  of  this  declara- 
tion is  not  admissible.  Proof  that  A  was  in  the  habit  of 
calling  a  particular  person  M  would  have  been  admissible.6' 

(/)  A  leaves  a  legacy  to .     Evidence  to  show  how  the 

blank  was  intended  to  be  filled  is  not  admissible.6 

(g)  Property  was  conveyed  in  trust  in  1704  for  the  support  of 
"  Godly  preachers  of  Christ's  holy  Gospel."     Evidence  may 


1  Illustration  (o). 

2  Smith  v.   Wilson.  8  B.  &  Ad.  728. 

8   Gorrissen  v.  Perrin.  2  C.  B.  (N.  S.)  681. 

*  Blackett  v.  Royal  Exchange,  C.  3  ;  2  C.  &  J.  244. 

6  Clayton  v.  Lord  Nugent.  13  M.  &  W.  200;  see  205-6. 

6  Baylis  v.  A.  %,  2  Atk.  239. 


112  A   DIGEST    OF  [PART    II. 

be  given  to  show  what  class  of  ministers  were  at  the  time 
known  by  that  name.1 

(4)  A  leaves  property  to  his  "  children."  If  he  has  both  legit- 
imate and  illegitimate  children  the  whole  of  the  property 
will  go  to  the  legitimate  children.  If  he  has  only  illegiti- 
mate children,  the  property  may  go  to  them  * 

(*)  A  testator  leaves  all  his  estate  in  the  county  of  Limerick 
and  city  of  Limerick  to  A.  He  had  no  estates  in  the  county 
of  Limerick,  but  he  had  estates  in  the  county  of  Clare,  of 
which  the  will  did  not  dispose.  Evidence  can  not  be  given 
to  show  that  the  words  "  of  Clare  "  had  been  erased  from 
the  draft  by  mistake,  and  so  omitted  from  the  will  as  exe- 
cuted.8 

(_/)  A  leaves  a  legacy  to  "  Mrs.  and  Miss  Bowden."  No 
such  persons  were  living  at  the  time  when  the  legacy  was 
made,  but  Mrs.  Washburne,  whose  maiden  name  had  been 
Bowden,  was  living,  and  had  a  daughter,  and  the  testatrix 
used  to  call  them  Bowden.  Evidence  of  these  facts  was 
admitted.* 

(k)  A  devises  land  to  John  Hiscocks,  the  eldest  son  of  John 
Hiscocks.  John  Hiscocks  had  two  sons,  Simon,  his  eldest, 
and  John,  his  second  son,  who,  however,  was  the  eldest  son 
by  a  second  marriage.  The  circumstances  of  the  family, 
but  not  the  testator's  declarations  of  intention,  may  be 
proved  in  order  to  show  which  of  the  two  was  intended.6 

(/)  A  devises  property  to  Elizabeth,  the  natural  daughter  of  B. 
B  has  a  natural  son  John,  and  a  legitimate  daughter  Eliza- 
beth. The  Court  may  infer  from  the  circumstances  under 
which  the  natural  child  was  born,  and  from   the  testator's 


'   Shore  v.   Wilson,  9  C.  &  F.  365,  565-6. 

2  Wig.  Ext.  Ev.,  p.  18  &  19,  and  note  of  cases. 

3  Miller  v.  Travers,  8  Bing.  244. 
*   Lee  v.  Pain,  4  Hare,  251-3, 

6  Doe  v.  Hiscocks,  5  M.  &  W.  368. 


Chap.  JS.IL]         the  law  of  evidence.  113 

relationship  to  the  putative  father,  that  he  meant  to  provide 
for  John.1 

(m)  A  leaves  a  legacy  to  his  niece,  Elizabeth  Stringer.  At  th 
date  of  the  will  he  had  no  such  niece,  but  he  had  a  great- 
great-niece  named  Elizabeth  Jane  Stringer.  The  Court  may 
infer  from  these  circumstances  that  Elizabeth  Jane  Stringer 
was  intended ;  but  they  may  not  refer  to  instructions  given 
by  the  testator  to  his  solicitor,  showing  that  the  legacy  was 
me  int  for  a  niece,  Elizabeth  Stringer,  who  had  died  before 
the  date  of  the  will,  and  that  it  was  put  into  the  will  by  a 
mistake  on  the  part  of  the  solicitor.3 

(«)  A  devises  one  house  to  George  Gord,  the  son  of  George 
Gord,  another  to  George  Gord,  the  son  of  John  Gord,  and  a 
third  to  George  Gord,  the  son  of  Gord.  Evidence  both  of 
circumstances  and  of  the  testator's  statements  of  intention 
may  be  given  to  show  which  of  the  two  George  Gords  he 


meant 


(0)  A  leaves  two  legacies  of  the  same  amount  to  B,  assigning 
the  same  motive  for  each  legacy,  one  being  given  in  his  will, 
the  other  in  a  codicil.  The  Court  presumes  that  they  are 
not  meant  to  be  cumulative,  but  the  legatee  may  show, 
either  by  proof  of  surrounding  circumstances,  or  of  declara- 
tions by  the  testator,  that  they  were.* 


1  Ryallv.  Hannam,  10  Beav.  536. 

*  Stringer  v.  Gardiner,  27  Beav.  35 ;  4  De  G.  &  J.  468. 
■  Doe  v.  Needs,  2  M.  &  W.  129. 

*  Per  Leach,  V.  C,  in  Hursts.  Leach,  5  Madd.  351,  360-1. 
The  rule  in  this  case  was  vindicated,  and  a  number  of  other 
cases  both  before  and  after  it  were  elaborately  considered,  by 
Lord  St.  Leonards,  when  Chancellor  of  Ireland,  in  Hall  v. 
Hill,  1  Dm.  and  War.  94,  111-133. 


114  a  digest  of  [part  ii. 

Article  92* 
cases  to  which  articles  90  and  91  do  not  apply. 
Articles  90  and  91  apply  only  to  parties  to  documents, 
and  to  their  representatives  in  interest,  and  only  to  cases 
in  which  some  civil  right  or  civil  liability  dependent  upon 
the  terms  of  a  document  is  in  question.  Any  person 
other  than  a  party  to  a  document  or  his  representative  in 
interest  may,  notwithstanding  the  existence  of  any  docu- 
ment, prove  any  fact  which  he  is  otherwise  entitled  to 
prove  [Submitted — and  any  party  to  any  document,  or 
any  representive  in  interest  of  any  such  party,  may  prove 
any  such  fact  for  any  purpose  other  than  that  of  varying 
or  altering  any  right  or  liability  depending  upon  the 
terms  of  the  document]. 

Illustration. 

The  question  is,  whether  A,  a  pauper,  is  settled  in  the  parish 
of  Cheadle.  A  deed  of  conveyance  to  which  A  was  a  party 
is  produced,  purporting  to  convey  land  to  A  for  a  valuable 
consideration.  The  parish  appealing  against  the  order  was 
allowed  to  call  A  as  a  witness  to  prove  that  no  consideration 
passed.1 


*  See  Note  XXXV. 
«  R  v.  Cheadle,  8  B.  &  Ad.  838. 


CHAP.  XIII.]         THE    LAW    OF    EVIDENCE.  115 


PART  III.— PRODUCTION  AND  EFFECT 
OF  EVIDENCE. 

CHAPTER  ML* 

BURDEN  OF  PROOF. 

Article  93.f 

HE   WHO   AFFIRMS   MUST   PROVE. 

Whoever  desires  any  Court  to  give  judgment  as  to  any 
legal  right  or  liability  dependent  on  the  existence  or  non- 
existence of  facts  which  he  asserts  or  denies  to  exist,  must 
prove  that  those  facts  do  or  do  not  exist.1 

Akticle  94.  f 

PRESUMPTION   OF    INNOCENCE. 

If  the  commission  of  a  crime  is  directly  in  issue  in  any 
action,  criminal  or  civil,  it  must  be  proved  beyond  reason- 
able doubt. 

The  burden  of  proving  that  any  person  has  been  guilty 
of  a  crime  or  wrongful  act  is  on  the  person  who  asserts  it, 
whether  the  commission  of  such  act  is  or  is  not  directly  in 
issue  in  the  action. 


*  See  Note    XXXVI.  f  -See  Note  XXXVII. 

1  1  Ph.  Ev.  552  ;  T.   E.  (from  Greenleaf ),  s.  887 ;  Best,  ss. 
265-6  ;  Starkie,  585-6. 


118  A   DIGEST   OF  [PART   III. 

Illustrations. 

(a)  A  sues  B  on  a  policy  of  fire  insurance.  B  pleads  that  A 
burnt  down  the  house  insured.  B  must  prove  his  plea  as 
fully  as  if  A  were  being  prosecuted  for  arson.1 

(&)  A  sues  B  for  damage  done  to  A's  ship  by  inflammable  mat- 
ter loaded  thereon  by  B  without  notice  to  A's  captain.  A 
must  prove  the  absence  of  notice.3 

(c)  The  question  in  1819  is,  whether  A  is  settled  in  the  parish 
of  a  man  to  whom  she  was  married  in  1813.  It  is  proved 
that  in  1S12  she  was  married  to  another  person,  who  enlisted 
soon  afterwards,  went  abroad  on  service,  and  had  not  been 
heard  of  afterwards.  The  burden  of  proving  that  the  first 
husband  was  alive  at  the  time  of  the  second  marriage  is  on 
the  person  who  asserts  it.8 

Article  95. 
on  whom  the  general  burden  of  proof  lies. 
The  burden  of  proof  in  any  action  lies,  when  the  action 
begins,  on  that  party  against  whom  the  judgment  of  the 
Court  would  be  given,  if  no  evidence  at  all  were  produced 
on  either  side,  regard  being  had  to  any  presumption  which 
may  appear  upon  the  pleadings.  As  the  action  proceeds, 
the  burden  of  proof  may  be  shifted  from  the  party  on 
whom  it  rested  at  first,  by  his  proving  facts  which  raise  a 
presumption  in  his  favor.* 


1    Thurtellw.  Beaumont,  1  Bing.  339. 
»    Williams  v.  East  India  Co.,  3  East,  102,  198-9. 
»  R.  v.  Twyning,  2  B.  &  A.  886. 

*  1  Ph.  Ev.  552;  T.  E.  ss.  838-9;   Starkie,  586-7  &  748; 
Best.  s.  268. 


Chap.  XTTL]      .the  law  of  evidence.  117 

Illustrations. 

(a)  It  appears  upon  the  pleadings  that  A  is  indorsee  of  a  bill 
of  exchange.  The  presumption  is  that  the  indorsement  was 
for  value,  and  the  party  interested  in  denying  this  must  prove 
it.» 

(<$)  A,  a  married  woman,  is  accused  of  theft  and  pleads  not 
guilty.  The  burden  of  proof  is  on  the  prosecution.  She  is 
shown  to  have  been  in  possession  of  the  stolen  goods  soon 
after  the  theft.  The  burden  of  proof  is  shifted  to  A.  She 
shows  that  she  stole  them  in  the  presence  of  her  husband. 
The  burden  of  proving  that  she  was  not  coerced  by  him  is 
shifted  on  to  the  prosecutor.8 

(c)  A  is  ind.jted  for  bigamy.  On  proof  by  the  prosecution  of 
the  first  marriage,  A  proves  that  at  the  time  he  was  a  minor. 
This  throws  on  the  prosecution  the  burden  of  proving  the 
consent  of  A's  parents.8 

(d)  A  deed  of  gift  is  shown  to  have  been  made  by  a  client  to 
his  solicitor.  The  burden  of  proving  that  the  transaction 
was  in  good  faith  is  on  the  solicitor.* 

(e)  It  is  shown  that  a  hedge  stands  on  A's  land.  The  burden 
of  proving  that  the  ditch  adjacent  to  it  is  not  A's  also  is  on 
the  person  who  denies  it  that  the  ditch  belongs  to  A.5 

(/)  A  proves  that  he  received  the  rent  of  land.  The  presump- 
tion is,  that  he  is  owner  in  fee  simple,  and  the  burden  of 
proof  is  on  the  person  who  denies  it.6 

(g)  A  finds  a  jewel  mounted  in  a  socket,  and  gives  it  to  B  to 
look  at.     B  keeps  it,  and  refuses  ta  produce  it  on  notice,  but 


1  Mills  v.  Barber,  1  M.  &  W.  425. 

2  1  Russ.  Cri.  33;  and  2,  337. 

3  R.  v.  Butler,  1  R.  &  R.  61. 

*  1  Story  Eq.  Juris.,  s.  310,  n.  1.     Quoting  Hunter  v.  Atkins, 
M.  &  K.  113. 

5  Guy  v.  West,  Selw.  N.  P.  1297. 

6  Doe  v.  Coulthred,  7  A.  &  E.  235" 


118  A   DIGEST    OF  [PART  III. 

returns  the  socket.  The  burden  of  proving  that  it  is  not  as 
valuable  a  stone  of  the  kind  as  would  go  into  the  socket  is 
on  B.1 

(A)  A  sues  B  on  a  policy  of  insurance,  and  shows  that  the  ves- 
sel insured  went  to  sea,  and  that  after  a  reasonable  time  no 
tidings  of  her  have  been  received,  but  that  her  loss  had  been 
rumored.  The  burden  of  proving  that  she  has  not  foundered 

.  is  on  B.2 

Article  96. 
burden  of  proof  as  to  particular  fact. 
The  burden  of  proof  as  to  any  particular  fact  lies  on 
that  person  who  wishes  the  Court  to  believe  in  its  exist- 
ence, unless  it  is  provided  by  any  law  that  the  burden  of 
proving  that  fact  shall  lie  on  any  particular  person ; 3  but 
the  burden  may  in  the  course  of  a  case  be  shifted  from 
one  side  to  the  other,  and  in  considering  the  amount  of 
evidence  necessary  to  shift  the  burden  of  proof  the  Court 
has  regard  to  the  opportunities  of  knowledge  with  respect 
to  the  fact  to  be  proved  which  may  be  possessed  by  the 
parties  respectively. 

Illustrations. 

(a)  A  prosecutes  B  for  theft,  and  wishes  the  Court  to  believe 
that  B  admitted  the  theft  to  C.  A  must  prove  the  admis- 
sion. 

B  wishes  the  Court  to  believe  that,  at  the  time  in  question,  he 
was  elsewhere.     He  must  prove  it. 


1  Armoury  v.  Delamitie,  1  S.  L.  C.  35V. 
*  Koster  v.  Reed,  6  B.  &  C.  19. 
'  For  instances  of  such  provisions  see  T.  E.  ss.  4  856. 


Chap.  XII I. J       the  law  of  evidence.  119 

{&)  A,  a  shipowner,  sues  B,  an  underwriter,  on  a  policy  of  in- 
surance <">ti  a  ship.  B  alleges  that  A  knew  of  and  concealed 
frosa  B  material  facts.  B  must  give  enough  evidence  to 
thr  ,w  upon  A  the  burden  of  disproving  his  knowledge  ;  but 
slight  evidence  will  suffice  for  this  purpose.1 

(c)  In  actions  for  penalties  under  the  old  game  laws,  though 
the  plaintiff  had  to  aver  that  the  defendant  was  net  duly 
qualified,  and  was  obliged  to  give  general  evidence  that  he 
was  not,  the  burden  of  proving  any  definite  qualification 
was  on  the  defendant.2 


Article  97. 

burden   op   proving    fact    to  be   proved  to    make 

evidence  admissible. 

The  burden  of  proving  any  fact,  necessary  to  be  proved 

in  order  to  enable  any  person  to  give  evidence  of  any  other 

fact,  is  on  the  person  who  wishes  to  give  such  evidence. 

Illustrations, 

(a)  A  wishes  to  prove  a  dying  declaration  by  B. 

A  must  prove  B's  death,  and  the  fact  that  he  had  given  up  all 
hope  of  life  when  he  made  the  statement. 

(b)  A  wishes  to  prove,  by  secondary  evidence,  the  contents  of 
a  lost  document. 

A  must  prove  that  the  document  has  been  lost. 


1  Elkin  v.  Jdnson,  13  M.  &  W.  655.  See,  especially,  the 
judgment  of  Alderson,  B.,  663-6. 

8  1  Ph.  Ev.  556,  and  cases  there  quoted.  The  illustration  is 
founded  more  particularly  on  R.  v.  yarvis,  in  a  note  to  R.  v. 
Stone,  1  Ea.  639,  where  Lord  Mansfield's  language  appears  to 
imply  what  is  stated  above. 


120  A  DIGEST  OF  [PART   HI 


CHAPTER  XTV. 
ON  PRESUMPTIONS  AND  ESTOPPELS* 

Article  98. 
presumption  of  legitimacy. 
The  fact  that  any  person  was  born  during  the  continuance 
of  a  valid  marriage  between  his  mother  and  any  man,  or 
within  such  a  time  after  the  dissolution  thereof  and  before 
the  celebration  of  another  valid  marriage,  that  his  moth- 
er's husband  could  have  been  his  father,  is  conclusive  proof 
that  he  is  the  legitimate  child  of  his  mother's  husband, 
unless  it  can  be  shown 

either  that  his  mother  and  her  husband  had  no  access  to 
each  other  at  any  time  when  he  could  have  been  begotten, 
regard  being  had  both  to  the  date  of  the  birth  and  to  the 
physical  condition  of  the  husband, 

or  that  the  circumstances  of  their  access  (if  any)  were 
such  as  to  render  it  highly  improbable  that  sexual  inter- 
course took  place  between  them  when  it  occurred. 

Neither  the  mother  nor  the  husband  is  a  competent 
witness  as  to  the  fact  of  their  having  or  not  having  had 


*  See  Note  XXXVI 


Chap.  XIV.]       the  law  of  evidence.  121 

sexual  intercourse  with  each  other,  nor  are  any  declara- 
tions by  them  upon  that  subject  regarded  as  relevant  facts- 
when  the  legitimacy  of  the  woman's  child  is  in  question, 
whether  the  mother  or  her  husband  can  be  called  as  a 
witness  or  not,  provided  that,  in  applications  for  affiliation 
orders,  when  proof  has  been  given  of  the  non-access  of 
the  husband  at  any  time  when  his  wife's  child  could  have 
been  begotten,  the  wife  may  give  evidence  as  to  the  per- 
son by  whom  it  was  begotten.1 

Article  99. 
presumption  of  death  from  seven  tears'  absence. 
A  person  shown  not  to  have  been  heard  of  for  seven 
years  by  those  (if  any)  who,  if  he  had  been  alive,  would 
naturally  have  heard  of  him,  is  presumed  to  be  dead,  un- 
less the  circumstances  of  the  case  are  such  as  to  account 
for  his  not  being  heard  of  without  assuming  his  death ;  but 
there  is  no  presumption  as  to  the  time  when  he  died,  and 
the  burden  of  proving  his  death  at  any  particular  time  is 
upon  the  person  who  asserts  it.2 


1  R.  v.  Luffe,  8  Ea.  207 ;  Cope  v.  Cope,  1  Mo.  &  Ro.  272-4 ; 
Legge  v.  Edmonds  25  L.  J.  Eq.  125,  see  p.  135 ;  R.  v.  Mans- 
field, 1  Q.  B.  444 ;   Morris  v.  Davies,  3  C.  &  P.  215. 

2  McMahon  v.  McElroy,  5  Ir.  Rep.  Eq.  1;  Hopewell  v.  D 
Pinna,  2  Camp.  113;  Nepean  v.  Doe,  2  S.  L.  C.  562,  681 ;  N» 
pean  v.  Knight,  2  M.  &  W.  894,  912  ;  R.  v  Lumley,  L.  R.  1 
C.  C.  R.  196  ;  and  see  the  caution  of  Lord  Denman  in  R.  v. 
Harborne,  2  A.  &  E.  544  All  the  cases  are  collected  and 
considered  in  In  re  Phene's  Trust,  L.  R.  5  Ch.  App.  139. 


122  a  digest  or  [Part  III. 

There  is  no  presumption  as  to  the  age  at  which  a  person 
died  who  is  shown  to  have  been  alive  at  a  given  time,  or 
as  to  the  order  in  which  two  or  more  persons  died  who  are 
shown  to  have  died  in  the  same  accident,  shipwreck,  or 
battle.1 

Article  100. 
presumption  of  lost  graxt. 

When  it  has  been  shown  that  any  person  has,  for  a  long 
period  of  time,  exercised  any  proprietary  right  which 
might  have  had  a  lawful  origin  by  grant  or  license  from 
the  Crown  or  from  a  private  person,  and  the  exercise 
of  which  might  and  naturally  would  have  been  prevented 
by  the  persons  interested  if  it  had  not  had  a  lawful  origin, 
there  is  a  presumption  that  such  right  had  a  lawful  origin 
and  that  it  was  created  by  a  proper  instrument  which  has 

been  lost. 

Illustrations. 

(a)  The  question  is,  whether  B  is  entitled  to  recover  from  A 
the  possession  of  lands  which  A's  father  and  mother  succes- 
sively occupied  from  1754  to  1792  or  1793,  and  which  B  had 
occupied  (without  title)  from  1793  to  1809.  The  lands 
formed  originally  an  encroachment  on  the  Forest  of  Dean. 

The  undisturbed  occupation  for  thirty-nine  years  raises  a  pre- 
sumption of  a  grant  from  the  Crown  to  A's  father.* 


1  Wing  v.  Angrave,  8  H.  L.  183,  19S  ;  and  see  authorities 
in  last  note. 

2  Goodtitle  v.  Baldwin,  11  Ea.  488.  The  presumption  was 
rebutted  in  this  case  by  an  express  provision  of  20  Ch.  II,  c. 
8  avoiding  grants  of  the  Forest  of  Dean.  See  also  Doe  d. 
Devine  v.   Wilson,  10  Moo.  P.  C.  502. 


"JlIAP.  XIV.J  THE   LAW   OF   EVIDENCE.  123 

(b)  A  fishing  mill-dam  was  erected  more  than  110  years  before 
1S61  in  the  River  Derwent,  in  Cumberland  (not  being  navi- 
gable at  that  place),  and  was  used  more  than  sixty  years 
before  1861  in  the  manner  in  which  it  was  used  in  1861. 
This  raises  a  presumption,  that  all  the  upper  proprietors, 
whose  rights  were  injuriously  affected  by  the  dam,  had 
granted  a  right  to  erect  it.1 

(c)  A  builds  a  windmill  near  B's  land  in  1S29,  and  enjoys  a 
free  current  of  air  to  it  over  B's  land  as  of  right,  and  with- 
out interruption  till  1860.  This  enjoyment  raises  no-  pre- 
sumption of  a  grant  by  B  of  a  right  to  such  a  current  of  air, 
as  it  would  not  be  natural  for  B  to  interrupt  it.3 

(d)  No  length  of  enjoym-nt  (by  means  of  a  deep  well)  of 
water,  percolating  through  underground  undefined  passages, 
raises  a  presumption  of  a  grant,  from  the  owners  of  the 
ground  under  which  the  water  so  percolates,  of  a  right  to 
the  water.8 


Article  101* 
presumption  of  regularity  and  of  deeds  to 

complete  title. 

When  any  judicial  or  official  act  is  shown  to  have  been 
done  in  a  manner  substantially  regular,  it  is  presumed 
that  formal  requisites  for  its  validity  were  complied  with. 

"When  a  person  in  possession  of  any  property  is  shown 
to  be  entitled  to  the  beneficial  ownership  thereof,  there  is 


*  See  Note  XXXVIII. 
1  Leccnfield  v.  Lonsdale,  L.  R.  5  C.  P.  657. 
»    Webb  v.  Bird,  13  C.  B.  (N.  S.)  S41. 
*   Chasmore  v.  Richards,  7  H.  of  L.  C.  349. 


124  A   DIGEST    OF  [PART    III. 

a  presumption  that  every  instrument  has  been  executed 
which  it  was  the  legal  duty  of  his  trustees  to  execute  in 
order  to  perfect  his  title.1 

Article  102.* 
estoppel  by  conduct. 

When  one  person  by  anything  which  he  does  or  says, 
or  abstains  from  doing  or  saying,  intentionally  causes  or 
permits  another  person  to  believe  a  thing  to  be  true,  and 
to  act  upon  such  belief  otherwise  than  but  for  that  belief 
he  would  have  acted,  neither  the  person  first  mentioned 
nor  his  representative  in  interest  is  allowed,  in  any  suit  or 
proceeding  between  himself  and  such  person  or  his  repre- 
sentative in  interest,  to  deny  the  truth  of  that  thing. 

When  any  person,  under  a  legal  duty  to  any  other  per- 
son to  conduct  himself  with  reasonable  caution  in  the 
transaction  of  any  business,  neglects  that  duty,  and  when 
the  person  to  whom  the  duty  is  owing  alters  his  position 
for  the  worse  because  he  is  misled  as  to  the  conduct  of  the 
negligent  person  by  a  fraud,  of  which  such  neglect  is  in 
the  natural  course  of  things  the  proximate  cause,  the  neg- 
ligent person  is  not  permitted  to  deny  that  he  acted  in  the 
manner  in  which  the  other  person  was  led  by  such  fraud 
to  believe  him  to  act. 


"  See  Note  XXXIX. 
1  Doe  d.  Hammond  v.  Cooke,  6  Bing.  174,  179. 


Chap.  XTV.]       the  law  of  evidence.  125 

Illustrations. 

(a)  A,  the  owner  of  machinery  in  B's  possession,  which  is 
taken  in  execution  by  C,  abstains  from  claiming  it  for 
some  months,  and  converses  with  C's  attorney  without  refer- 
ring to  his  claim,  and  by  these  means  impresses  C  with  the 
belief  that  the  machinery  is  B's.  C  sells  the  machinery.  A 
is  estopped  from  denying  that  it  is  B's  1 

{<$)  A,  a  retiring  partner  of  B,  gives  no  notice  to  the  customers 
of  the  firm  that  he  is  no  longer  B's  partner.  In  an  action 
by  a  customer,  he  cannot  deny  that  he  is  B's  partner.8 

(c)  A  sues  B  for  a  wrongful  imprisonment.  The  imprison- 
ment was  wrongful  if  B  had  a  certain  original  warrant; 
rightful  if  he  had  only  a  copy.  B  had  in  fact  a  copy.  He 
led  A  to  believe  that  he  had  the  original,  though  not  with 
the  intention  that  A  should  act  otherwise  than  he  actually 
did,  nor  did  A  so  act.  B  may  show  that  he  had  only  a  copy 
and  not  the  original  s 

(d)  A  sells  eighty  quarters  of  barley  to  B,  but  does  not  specif- 
ically appropriate  to  B  any  quarters.  B  sells  sixty  of  the 
eighty  quarters  to  C.  C  informs  A,  who  assents  to  the 
transfer.  C,  being  satisfied  with  this,  says  nothing  further  to 
B  as  to  delivery.  B  becomes  bankrupt.  A  cannot,  in  an 
action  by  C  to  recover  the  barley,  deny  that  he  holds  for  C 
on  the  ground  that,  for  want  of  specific  appropriation,  no 
property  passed  to  B  * 

(<f)  A  signs  blank  checks  and  gives  them  to  his  wife  to  fill  up 
as  she  wants  money.  A's  wife  fills  up  a  check  for  _£50  2s.  so 
carelessly  that  room  is  left  for  the  insertion  of  figures  before 
the   50,  and  for  the  insertion  of  words  before  the   "  fifty. "' 


1  Pickard  v.  Sears.  6A.&E.  469;  474. 

*  (Per  Pirke,  B.)  Freeman  v.  Cooke,  2  Ex.  661. 

*  Howard  v.  Hudson,  2  E.  A  B.  1. 

*  Kmghts  v.  Wiffen,  L.  R.  5  Q.  B.  660. 


126  a  digest  of  [Part  III. 

She  then  gives  it  to  a  clerk  of  A's  to  get  it  cashed.  He  writes 
8  before  50  and  "three  hundred  and  "  before  "fifty."  A's 
banker  pays  the  check  so  altered  in  good  faith.  A  cannot 
recover  against  the  banker.1 
(/)  A  carelessly  leaves  his  door  unlocked,  whereby  his  goods 
are  stolen.  He  is  not  estopped  from  denying  the  title  of  an 
innocent  purchaser  from  the  thief.2 

Article  103. 
estoppel  of  tenant  and  licensee. 
No  tenant  and  no  person  claiming  through  any  tenant  oi 
any  land  or  hereditament  of  which  he  has  been  let  into 
possession,  or  for  which  he  has  paid  rent,  is,  till  he  has 
given  up  possession,  permitted  to  deny  that  the  landlord 
had,  at  the  time  when  the  tenant  was  let  into  possession 
or  paid  the  rent,  a  title  to  such  land  or  hereditament;3 
and  no  person  who  came  upon  any  land  by  the  license  of 
the  person  in  possession  thereof  is,  whilst  he  remains  on 
it,  permitted  to  deny  that  such  person  had  a  title  to  such, 
possession  at  the  time  when  such  license  was  given.4 

Article  104. 
estoppel  c"  acceptor  of  bill  of  exchange. 
No  acceptor  of  a  bill  of  exchange  is  permitted  to  deny 
the  signature  of  the  drawer  or  his  capacity  to  draw,  or,  if 


1  Young  v.  Grotte,  4  Bing.  253 

2  Per  Blackburn,  J.,  in  Swan  v.  N.  B.  Australasian,  C.  8,  2 
H.  &  C.  181. 

3  Doe  v.  Barton,  11  A.  &  E.  807;   Doe  v.  Smyth,  4  M.  &  S. 
847  ;   Doe  v.  Pegg,  1  T.  R.  760  (note). 

*  Doe  v.  Baytup,  3  A.  &  E.  188. 


Chap.  XIV.]       the  law*  of  evidence.  127 

the  bill  is  payable  to  the  order  of  the  drawer,  his  capacity 
to  endorse  the  bill,  though  he  may  deny  the  fact  of  the 
endorsement ; x  nor,  if  the  bill  be  drawn  by  procuration, 
the  authority  of  the  agent,  by  whom  it  purports  to  be 
drawn,  to  draw  in  the  name  of  the  principal, 2  though  he 
may  deny  his  authority  to  endorse  it.3 

Article  105. 
estoppel  of  bailee,  agent,  and  licensee. 

No  bailee,  agent,  or  licensee  is  permitted  to  deny  that 
the  bailor,  principal,  or  licensor,  by  wmom  any  goods  were 
entrusted  to  any  of  them  respectively,  was  entitled  to 
those  goods  at  the  time  when  they  were  so  entrusted. 

Provided,  that  any  such  bailee,  agent,  or  licensee,  may 
show  that  he  was  compelled  to  deliver  up  any  such  goods 
to  some  person  who  had  a  right  to  them  as  against  his 
bailor,  principal,  or  licensor,  or  that  his  bailor,  principal, 
or  licensor,  wrongfully  and  without  notice  to  the  bailee, 
agent,  or  licensee,  obtained  the  goods  from  a  third  person 
who  has  claimed  them  from  such  bailee,  agent,  or  licensee.4- 

Every  bill  of  lading  in  the  hands  of  a  consignee  or  en- 


1  Garland  v.  Jacomb,  L.  R.  S  Ex.  216. 

2  Sanderson  v.  Coleman,  4  M.  &  G.  209. 

3  Robinson  v.   Yarrow,  7  Tau.  455. 

*  Dixon  v.  Hammond,  2  B .  &  A.  813  ;  Crossley  v.  Dixon,  10 
H.  L.  293 ;  Gosling  v.  Birnie,  7  Bing.  339 ;  Hardman  v.  Wil- 
cock,  9  Bing.  3S2 .  Biddle  v.  Bond,  L.  J.  34  Q.  B.  137  ;  Wilson 
v.  Anderton,  1  B.  &  Ad.  450.  As  to  carriers,  s^e  Sheridan  v. 
New  Quay,  4  C.  B.  (N.S.)  618. 


128  A  DIGEST    OF  [PART   III. 

dorsee  for  valuable  consideration,  representing  goods  to 
have  been  shipped  on  board  a  vessel,  is  conclusive  proof 
of  that  shipment  as  against  the  master  or  other  person 
signing  the  same,  notwithstanding  that  such  goods  or  some 
part  thereof,  may  not  have  been  so  shipped,  unless  such 
holder  of  the  bill  of  lading  had  actual  notice  at  the  time 
of  receiving  the  same  that  the  goods  had  not  been  in  fact 
laden  on  board,  provided  that  the  master  or  other  person 
so  signing  may  exonerate  himself  in  respect  of  such 
misrepresentation  by  showing  that  it  was  caused  without 
any  default  on  his  part,  and  wholly  by  the  fraud  of  the 
shipper  or  of  the  holder,  or  some  person  under  whom  the 
holder  holds.1 


»  18  &  19  Vict.  c.  Ill,  s.  8. 


Chap.  XV.]        the  law  of  evidence.  129 


CHAPTER  XV. 

OF  THE  COMPETENCY  OF  WITNESSES.* 

Article  106. 
who  may  testify. 
All  persons  are  competent  to  testify  in  all  cases  except  as 
hereinafter  excepted. 

Article  107.f 

WHAT  WITNESSES  ARE    INCOMPETENT. 

A  witness  is  incompetent  if,  in  the  opinion  of  the  judge, 
he  is  prevented  by  extreme  youth,  disease  affecting  his 
mind,  or  any  other  cause  of  the  same  kind,  from  recol- 
lecting the  matter  on  which  he  is  to  testify,  from  under- 
standing the  questions  put  to  him,  from  giving  rational 
answers  to  those  questions,  or  from  knowing  that  he 
ought  to  speak  the  truth. 

A  witness  unable  to  speak  or  hear  is  not  incompetent, 
but  may  give  his  evidence  by  writing  or  by  signs,  or  in 
any  other  manner  in  which  he  can  make  it  intelligible; 
but  such  writing  must  be  written  and  such  signs  made  in 


*  See  Note  XL.  f  See  Note  XLI. 

I 


130  A   DIGEST    OF  [PaKT   III. 

open  Court.     Evidence  bo  given   is  deemed  to  be  oral 
evidence. 

Article  108.* 
competency  in  criminal  cases. 

In  criminal  cases  the  accused  person  md  his  or  her  wife 
or  husband,  and  every  person  and  the  wife  or  husband  of 
every  person  jointly  indicted  with  him,  is  incompetent  to 
testify.1 

Provided  that  in  any  criminal  proceeding  against  a 
husband  or  wife  for  any  bodily  injury  or  violence  inflicted 
upon  his  or  her  wife  or  husband,  such  wife  or  husband  is 
competent  and  compellable  to  testify.2 

Proceedings  at  law  on  the  Revenue  side  of  the  Exchequer 
Division  of  the  High  Court  of  Justice  are  not  criminal 
within  the  meaning  of  this  article.3 

Article  109. 

competency  in  proceedings  relating  to  adultery. 

In  proceedings  instituted  in  consequence  of  adultery, 

the  parties  and  their  husbands  and  wives  are  competent 

witnesses,  provided  that  no  witness  in  any  [such  ?]  pro 


♦See  Note  XLII. 

1  R.  v.  Payne,  L.  R.  1  C.  C.  R  3-49,  and  R.  v.  Thompson,  ib. 
377. 

1  Reeve  v.  Wood,  5  B.  *  S.  364.  Treason  has  been  also 
supposed  to  form  an  exemption.     See  T.  E.  s.  1237. 

8  23  ,1-  29  Vict.  c.  104,  s.  34. 


Chap.  XY.]  the  law  of  evidence.  131 

ceeding,  whether  a  party  to  the  suit  or  not,  is  liable  to  be 
asked  or  bound  to  answer  any  question  tending  to  show 
that  he  or  she  has  been  guilty  of  adultery,  unless  such 
witness  has  already  given  evidence  in  the  same  proceeding 
in  disproof  of  his  or  her  alleged  adultery.1 

Article  110. 
communications  during  marriage. 
No  husband  is  compellable  to  disclose  any  communica- 
tion made  to  him  by  his  wife  during  the  marriage,  and  no 
wife  is  compellable  to  disclose  any  communication  made  to 
her  by  her  husband  during  the  marriage.* 

Article  111*. 
judges  and  advocates  privileged  as  to  certain 
questions. 
It  is  doubtful  whether  a  judge  is  compellable  to  testify 
as  to  anything  which  came  to  his  knowledge  in  court  as 
such  judge.3  It  seems  that  a  barrister  cannot  be  com- 
pelled to  testify  as  to  what  he  said  in  court  in  his  character 
of  a  barrister.4 


*See  Note  XLIII. 

1  32  &  83  Vict.  c.  68,  s.  8.  The  word  "such"  seems  to 
have  been  omitted  accidentally. 

J  16  and  17  Vict.  c.  83,  s.  3.  It  is  doubtful  whether  this 
would  apply  to  a  widow  or  divorced  person,  questioned  after 
the  dissolution  of  the  marriage  as  to  what  had  been  communi- 
cated to  him  whilst  it  lasted 

8  R.  v.  Gazard,  S  C.  A  P.  595. 

*    Curry  v.    Walter,  1  Esp.  456. 


132  a  digest  of  [part  ttt. 

Article  112. 
evidence  as  to  affairs  of  state. 
No  one  can  be  compelled  to  give  evidence  relating  to 
any  affairs  of  state,  or  as  to  official  communications  be- 
tween public  officers  upon  public  affairs,  except  with  the 
permission  of  the  officer  at  the  head  of  the  department 
concerned,1  or  to  give  evidence  of  what  took  place  in 
either  House  of  Parliament,  without  the  leave  of  the 
House,  though  he  may  state  that  a  particular  person 
acted  as  Speaker.2 

Article  113. 
information  as  to  commission  of  offences. 

In  cases  in  which  the  government  is  immediately  con- 
cerned no  witness  can  be  compelled  to  answer  any  ques- 
tion, the  answer  to  which  would  tend  to  discover  the 
names  of  persons  by  or  to  whom  information  was  given 
as  to  the  commission  of  offences. 

In  ordinary  criminal  prosecutions  it  is  for  the  judge  to 
decide  whether  the  permission  of  any  such  question  would 
or  would  not,  under  the  circumstances  of  the  particular 
case,  be  injurious  to  the  administration  of  justice.3 


1  Beatson  v.  Skene,  5  H.  &  N.  838. 

»  Chubb  v.  Salomons,  3  Car.  &  Kir.  77  ;  P/unkett  v.  Cobleit, 
5  Esp    136. 

»  A\  v.  Hardy.  24  S.  T.  811 ;  A.  G.  v.  Bryant,  15  M.  &  W. 
169;   R.  v.  Richardson,  8.  F  &  F.  693. 


Chap.  XV.]        the  law  of  evidence.  133 

Article  114. 
competency  of  jurors. 
A  petty  juror  may  not x  and  it  is  doubtful  whether  a 
grand  juror  may2  give  evidence  as  to  what  passed  be- 
tween the  jurymen  in  the  discharge  of  their  duties.  It  is 
also  doubtful  whether  a  grand  juror  may  give  evidence  as 
to  what  any  witness  said  when  examined  before  the  grand 
jury. 

Article  115.* 
professional  communications. 
No  legal  adviser  is  permitted,  whether  during  or  after 
the  termination  of  his  employment  as  such,  unless  with 
his  client's  express  consent,  to  disclose  any  communication, 
oral  or  documentary,  made  to  him  as  such  legal  adviser, 
by  or  on  behalf  of  his  client,  during,  in  the  course,  and 
for  the  purpose  of  his  employment,  whether  in  reference 
to  any  matter  as  to  which  a  dispute  has  arisen  or  other- 
wise, or  to  disclose  any  advice  given  by  him  to  his  client 
during,  in  the  course,  and  for  the  purpose  of  such  employ- 
ment. It  is  immaterial  whether  the  client  is  or  is  not  a 
party  to  the  action  in  which  the  question  is  put  to  the 
lesa]  adviser. 


*S^e  Note  XLIV. 
1    Vaise  v.    Delavjl,  1  T.  R.  11;    Burgess 
G.  722. 
*  1  Ph    Ev.  140;   T.    E.   S.   868 


134  a  diokst  of  [Part  1IL 

This  article  does  not  extend  to — 

(1)  Any  such  communication  as  aforesaid  made  in  fur- 
therance of  any  criminal  purpose  ; J 

(2)  Any  fact  observed  by  any  legal  adviser,  in  the  course 
of  his  employment  as  such,  showing  that  any  crime  or 
fraud  has  been  committed  since  the  commencement  of  his 
employment,  whether  his  attention  was  directed  to  such 
fact  by  or  on  behalf  of  his  client  or  not; 

(3)  Any  fact  with  which  such  legal  adviser  became 
acquainted  otherwise  than  in  his  character  as  such.  The 
expression  "legal  adviser  "  includes  barristers  and  solici- 
tors,2 their  clerks,3  and  interpreters  between  them  and 
their  clients. 

Illustrations. 

(a)  A,  being  charged  with  embezzlement,  retains  B,  a  barris- 
ter, to  defend  him.     In  the  course  of  the  proceedings,  B 


1  Follett  v.  Jefferyes,  1  Sim.  (N.  S.)  17 ;  Charlton  v. 
Coombes,  32  L.  J.  Ch.  2S4.  These  cases  put  the  rule  on  the 
principle,  that  the  furtherance  of  a  criminal  purpose  can  never 
be  part  of  a  legal  adviser's  business.  As  soon  as  a  legal  ad- 
viser takes  part  in  preparing  for  a  crime,  he  ceases  to  act  as  a 
lawyer  and  becomes  a  criminal — a  conspirator  or  accessory  as 
the  case  may  be. 

2  Wilson  v.  Rastall,  4  T.  R.  753.  As  to  interpreters,  lb., 
750. 

5  Taylor  v.  Foster,  2  C.  &  P.  195  ;  Foote  v.  Hayne,  1  C  & 
P.  545  Qmere,  whether  licensed  conveyancers  are  within  the 
rule  ?  Parke  B..  in  Turquand  v.  Knight,  7  M.  ft  W.  100, 
thought  not.  Special  pleaders  would  seem  to  be  on  the  same 
footing 


Chap.  XV.]        the  law  of  evidence.  135 

observes  that  an  entry  has  been  made  in  A's  account  book, 
charging  A  with  the  sum  said  to  have  been  embezzled,  which 
entry  was  not  in  the  book  at  the  commencement  of  B's  em- 
ployment. 

This  being  a  fact  observed  by  B  in  the  course  of  his  employ- 
ment, showing  that  a  fraud  has  been  committed  since  the 
commencement  of  the  proceedings,  is  not  protected  from 
disclosure  in  a  subsequent  action  by  A  against  the  prosecutor 
in  the  original  case  for  malicious  prosecution.1 

(£)  A  retains  B,  an  attorney,  to  prosecute  C  (whose  property 
he  had  fraudulently  acquired)  for  murder,  and  says,  "  It  is 
not  proper  for  me  to  appear  in  the  prosecution  for  fear  of 
its  hurting  me  in  the  cause  coming  on  between  myself  and 
him ;  but  I  do  not  care  if  I  give  ^10  000  to  get  him  hanged, 
for  then  I  shall  be  easy  in  my  title  and  estate."  This  com- 
munication is  not  privileged.* 


Article  116. 
confidential  communications  with  legal  advisers. 
No  one  can  be  compelled  to  disclose  to  the  Court  any 
communication  between  himself  and  his  legal  adviser, 
which  his  legal  adviser  could  not  disclose  without  his  per- 
mission, although  it  may  have  been  made  before  any  dis- 
pute arose  as  to  the  matter  referred  to.3 


1  Brown  v.  Foster,  1  H.  &  N.  736 

*  Annesley  v.  Anglesea,  17  S.  T.  1223-4. 

3  Minet  v  Morgan,  L.  R  8  Ch.  App.  361,  reviewing  all  the 
cases,  and  adopting  the  explanation  given  in  Pearse  v.  Pearse, 
1  DeG.  &  S.  18-31,  of  Radcliffe  v.  Fursman,  2   Br.  P.  C.  514. 


136  a  digest  of  [pabt  ill 

Article  117.* 
clergymen  and  medical  men. 
Medical  men1  and  [probably]  clergymen  may  be  com- 
pelled to  disclose  communications  made  to  them  in  pro- 
fessional confidence. 

Article  118. 
production  of  title-deeds  of  witness  not  a  party. 
No  witness  who  is  not  a  party  to  a  suit  can  be  compelled 
to  produce  his  title-deeds  to  any  property,2  or  any  docu- 
ment, the  production  of  which  might  tend  to  criminate 
him,  or  expose  him  to  any  penalty  or  forfeiture; 3  but  a 
witness  is  not  entitled  to  refuse  to  produce  a  document  in 
his  possession  only  because  its  production  may  expose  him 
to  a  civil  action,4  or  because  he  has  a  lien  upon  it.5 


*  See  Note  XLV. 

1  Duchess  of  Kingston's   Case,  20  S.  T.  572-3.     As  to  cler- 
gymen, see  Note  XLV. 

2  Pickering  v.  Noyes,  1  B.  &  C.  2G3 ;  Adams  v.  Lloyd,  8  H. 
&  N.  351. 

8  Whitakerv.  hod,  2  Tau.  115. 

*  Doe  v.  D.ite,  3  Q    B    6»>9.  618. 

6  Hope  v.  Lid  dell,  7  De  G.  M.  &  G.  331;  Hunter  v.  Leath- 
ley,  10  B.  &  C.  S53  ;  Brassm^ton  v.  Brassing  ton,  1  Si.  &  Stu. 
455.  It  has  been  doubted  whether  production  may  not  be  re- 
fused on  the  ground  of  a  lien  as  against  the  party  requiring  the 
production.  This  is  suggested  in  Brassington  v.  Brassington 
and  was  acted  upon  by  Lord  Denman  in  Kemp  v.  King,  2  Mo. 


Chap.  XV.]        the  law  of  evidence.  137 

Article  119. 

production  of  documents  which  another  person, 
having  possession,  could  refuse  to  produce. 

No  solicitor,1  trustee,  or  mortgagee  can  be  compelled  to 
produce  (except  for  the  purpose  of  identification)  docu- 
ments in  his  possession  as  such,  which  his  client,  cestui  que 
trust  or  mortgagor  would  be  entitled  to  refuse  to  produce 
if  they  were  in  his  possession ;  nor  can  any  one  who  is  en- 
titled to  refuse  to  produce  a  document  be  compelled  to 
give  oral  evidence  of  its  contents.2 

Article  120. 
witness  not  to  be  compelled  to  criminate  himself. 
No  one  is  bound  to  answer  any  question  if  the  answer 
thereto  would,  in  the  opinion  of  the  judge,  have  a  ten- 
dency to  expose  the  witness  [or  the  wife  or  husband  of 
the  witness]  to  any  criminal  charge,  or  to  any  penalty 
or  forfeiture  which  the  judge  regards  as  reasonably  likely 


&  Ro.  437 ;  but  it  seems  to  be  opposed  to  Hunter  v.  Leathley, 
in  which  a  broker  who  had  a  lien  on  a  policy  for  premiums  ad- 
vanced, was  compelled  to  produce  it  in  an  action  against  the 
underwriter  by  the  assured  who  had  created  the  lien.  See  Ley 
v.  Barlow  (Judgt.  of  Parke,  B.)  1  Ex    801. 

1  Volant  v.  Soyer,  13  C.  B.  231.    Phelps  v.  Frew,  8  E.  &  B. 
431. 

2  Davies   v.    Waters.  9    M.    &    W.  60S;    Few  v.    Guppy,   13 
Beav.  454. 


138  A   DIGEST    OF  [PART   1 1  J. 

to  be  preferred  or  sued  for ; l  but  no  one  is  excused  from 
answering  any  question  only  because  the  answer  may  es- 
tablish or  tend  to  establish  that  he  owes  a  debt,  or  is  oth- 
erwise liable  to  any  civil  suit,  either  at  the  instance  of 
the  Crown  or  of  any  other  person.2 

Article  121. 
corroboration,  when  required. 

No  plaintiff  in  any  action  for  breach  of  promise  of 
marriage  can  recover  a  verdict,  unless  his  or  her  testimony 
is  corroborated  by  some  other  material  evidence  in  support 
of  such  promise.3 

No  order  against  any  person  alleged  to  be  the  father  of 
a  bastard  child  can  be  made  by  any  justices,  or  confirmed 
on  appeal  by  any  Court  of  Quarter  Session,  unless  the 
evidence  of  the  mother  of  the  said  bastard  child  is  cor- 


1  R.  v.  Boyes,  1  B.  &  S.  330.  As  to  husbands  and  wives,  see 
1  Hale,  P.  C.  301 ;  R.  v.  divider,  2  T.  R.  263  ;  Cartwright  v. 
Green,  8  Ve.  4^5  ;  R.  v.  Bathwick,  2  B  and  Ad.  639  ;  R.  v. 
All  Saints,  Worcester,  6  M.  &  S.  194.  These  cases  show  that 
«ven  under  the  old  law  which  made  *he  parties  and  their  hus- 
bands and  wives  incompetent  witnesses,  a  wife  was  not  incom- 
petent to  prove  matter  which  might  tend  to  criminate  her 
husband.  R.  v.  Cliviger  assumes  that  she  was,  and  was  to 
that  extent  overruled.  Thf  cases,  however,  do  not  decide 
that  if  the  wife  claimed  the  ^ri^iiege  of  not  answering  she 
would  be  compelled  to  de  so,  and  ft  some  extent  they  suggest 
that  she  would  not. 

*  46  Geo.  Ill,  c.  37. 

•  82  &  33  Vict.  c.  6S    *  9 


Chap.  XY.]         the  law  of  evidence.  139 

roborated  in  some  material  particular  to  the  satisfaction  of 
the  said  justices  or  Court  respectively.1 

When  the  only  proof  against  a  person  charged  with  a 
criminal  offence  is  the  evidence  of  an  accomplice,  uncor- 
roborated in  any  material  particular,  it  is  the  duty  of  the 
judge  to  warn  the  jury  that  it  is  unsafe  to  convict  any 
person  upon  such  evidence,  though  they  have  a  legal  right 
to  do  so.* 

Article  122. 
number  of  witnesses. 

In  trials  for  high  treason,  or  misprision  of  treason,  no 
one  can  be  indicted,  tried,  or  attainted  (unless  he  pleads 
guilty)  except  upon  the  oath  of  two  lawful  witnesses, 
either  both  of  them  to  the  same  overt  act,  or  one  of  them 
to  one  and  another  of  them  to  another  overt  act  of  the 
same  treason.  If  two  or  more  distinct  treasons  of  divers 
heads  or  kinds  are  alleged  in  one  indictment,  one  witness 
produced  to  prove  one  of  the  said  treasons  and  another 
witness  produced  to  prove  another  of  the  said  treasons 
are  not  to  be  deemed  to  be  two  witnesses  to  the  same  trea- 
son within  the  meaning  of  this  article.3 

This  provision  does  not  apply  to  cases  of  high  treason 
in  compassing  or  imagining  the  Queen's  death,  in  which 


1  8  A  9  Vict,  c   10,  s.  6  ;  35  &  6  Vict.  c.  6,  s.  4. 

*  1  Ph.  Ev.  93-101  ;  T.  E.  ss.  8S7-91  ;  8  Russ.  Cri.  600-611. 

»  1  &  8  Will.  III.  c.  S,  ss.  2.  4. 


140  A   DIGEST   OF  [PART    111. 

the  overt  act  or  overt  acts  of  such  treason  alleged  in  the 
indictment  are  assassination  or  killing  of  the  Queen,  or 
any  direct  attempt  against  her  life,  or  any  direct  attempt 
against  her  person,  whereby  her  life  may  be  endangered 
or  her  person  suffer  bodily  harm,1  or  to  misprision  of  such 
treason. 

If  upon  a  trial  for  perjury  the  only  evidence  against  the 
defendant  is  the  oath  of  one  witness  contradicting  the 
oath  on  which  perjury  is  assigned,  and  if  no  circumstances 
are  proved  which  corroborate  such  witness,  the  defendant 
is  entitled  to  be  acquitted.3 


*  89  &  40  Geo.   III.   c.    93. 

*  Russ.  on  Crimes,  77-86. 


Chap.  XVI. ]        the  law  or  evidence.  141 


CHAP.  XVI. 
OF  THE  EXAMINATION  OF  WITNESSES. 
Article  123. 
evidence  to  be  "upon  oath,  except  ix  certain  cases. 
All  oral  evidence  given  in  any  action  must  be  given  upon 
oath,  but  if  any  person  called  as  a  witness  refuses  or  is 
unwilling  to  be  sworn  from  alleged  conscientious  motives, 
the  judge  before  whom  the  evidence  is  to  be  taken  may, 
upon  being  satisfied  of  the  sincerity  of  such   objection, 
permit  such  person,  instead  of  being  sworn,  to  make  his  or 
her  solemn  affirmation  and  declaration  in  the  following 
words — 

"1,  A  B,  do  solemnly,  sincerely,  and  truly  affirm  and 
declare  that  the  taking  of  any  oath  is  according  to  my 
religious  belief  unlawful,  and  I  do  also  solemnly,  sin- 
cerely, and  truly  affirm  and  declare,"  &C1 

2  If  any  person  called  to  give  evidence  in  any  court  of 


1  17  &  IS  Vict  c.  125,  s.  20  (civil  cases) ;  24  &25  Vict.  c.  66 
(criminal  cases). 

2  32  &  33  Vict.  c.  63,  s.  4.  ;  33  &  34  Vict.  c.  49.  I  omit 
special  provisions  as  to  Quakers,  Moravians,  and  Separatists,  as 
the  enactments  mentioned  above  include  all  cases.  The  stat- 
utes are  referred  to  in  T  E.  s.  1254  ;    R.  N.  P.  175-6. 


142  A   DIGEST    OF  [PaKT    III. 

justice,  whether  in  a  civil  or  criminal  proceeding,  objects 
to  take  an  oath,  or  is  objected  to  as  incompetent  to  take 
such  an  oath,  such  person  must,  if  the  presiding  judge  is 
satisfied  that  the  taking  of  an  oath  would  have  no  binding 
effect  on  his  conscience,  make  the  following  promise  and 
declaration — 

"I  solemnly  promise  and  declare  that  the  evidence 
given  by  me  to  the  Court  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth." 

If  any  person,  having  made  either  of  the  said  declara- 
tions wilfully,  and  corruptly  gives  false  evidence,  he  is 
liable  to  be  punished  as  for  perjury. 

Article  124. 
form  of  oaths. 
Oaths  are  binding  which  are  administered  in  such  form 
and  with  such  ceremonies  as  the  person  sworn  declares  to 
be  binding.1 

Article  125. 
who  is  to  have  power  to  administer  oaths. 
Every  person  now  or  hereafter  having  power  by  law  or 
by  consent  of  parties  to  hear,  receive,  and  examine  evi- 
dence, is  empowered  to  administer  an  oath  to  all  such 
witnesses  as  are  lawfully  called  before  him.2 


1  1  A2  Vict.   c.   105.     For  the  old  law,   see    Otitic  hand  v. 
Barker,  1  S.  L.  C.  455. 

2  14  &  15  Vict.  c.  99,  s.  16. 


Chap.  XVL]       the  law  of  evidence.  14& 

Article  126.* 

examination  in  chief,  cross-examination,  and 
re-examination. 

Witnesses  must  be  first  examined  in  chief,  then  cross- 
examined,  and  then  re-examined. 

Whenever  any  witness  has  been  examined  in  chief,  or 
has  been  intentionally  sworn,  or  has  made  a  promise  and 
declaration  as  hereinbefore  mentioned  for  the  purpose  of 
giving  evidence,  the  opposite  party  has  a  right  to  cross- 
examine  him;  but  the  opposite  party  is  not  entitled  to 
cross-examine  merely  because  a  witness  has  been  called  to 
produce  a  document  on  a  subpoena  duces  tecum,  or  in  order 
to  be  identified.  After  the  cross-examination  is  concluded, 
the  party  who  called  the  witness  has  a  right  to  re-examine 
him. 

The  Court  may  in  all  cases  permit  a  witness  to  be  re- 
called either  for  further  examination  in  chief  or  for  further 
cross-examination,  and  if  it  does  so,  the  parties  have  the 
right  of  further  cross-examination  and  further  re-exam- 
ination respectively. 

If  a  witness  dies,  or  becomes  incapable  of  being  further 
examined  at  any  stage  of  his  examination,  the  evidence 
given  before  he  became  incapable  is  good.1 


*  See  Note  XLVI. 
1  R.  v.  Doolin,  1  Jebb,  C.  C.  123.     The  judges  compared 
the   case  to  that  of  a  dying  declaration  which  is  admitted r 
though  there  can  be  no  cross-examination. 


144  A   DIGEST   OF  [PART   ITT. 

If  in  the  course  of  a  trial  a  witness  who  was  supposed 
to  be  competent  appears  to  be  incompetent,  his  evidence 
may  be  withdrawn  from  the  jury,  and  the  case  may  be 
left  to  their  decision  independently  of  it.1 

Article  127. 
to  what  matters  cross-examination  and  re-exam- 
ination must  be  directed. 

The  examination  and  cross-examination  must  relate  to 
facts  in  issue  or  relevant  facts,  but  the  cross-examination 
need  not  be  confined  to  the  facts  to  which  the  witness 
testified  on  his  examination  in  chief. 

The  re-examination  must  be  directed  to  the  explanation 
of  matters  referred  to  in  cross-examination ;  and  if  new 
matter  is,  by  permission  of  the  Court,  introduced  in  re- 
examination, the  adverse  party  may  further  cross-examine 
upon  that  matter. 

Article  128. 
leading  questions. 
Questions  suggesting  the  answer  which  the  person  put- 
ting the  question  wishes  or  expects  to  receive,  or  suggest- 
ing disputed  facts  as  to  which  the  witness  is  to  testify, 
must  not,  if  objected  to  by  the  adverse  party,  be  asked  in 
an  examination  in  chief,  or  a  re-examination,  except  with 
the  permission  of  the  Court,  but  such  questions  may  be 
asked  in  cross-examination. 


1  R.  v.   Whitehead.  L    R.  1  C.  C.  R.  83. 


Chap.  XVL]       the  law  of  evidence.  145 

Article  129.* 
questions  lawful  in  cross-examination. 
When  a  witness  is  cross-examined,  he  may,  in  addition 
to  the  questions  hereinbefore  referred  to,  be   asked  any 
questions  which  tend  — 

(1)  To  test  his  accuracy,  veracity,  or  credibility;  or 

(2)  To  shake  his  credit,  by  injuring  his  character. 

He  may  be  compelled  to  answer  any  such  question, 
however  irrelevant  it  may  be  to  the  facts  in  issue,  and 
however  disgraceful  the  answer  may  be  to  himself,  except 
in  the  case  provided  for  in  article  120. 

Illustration. 

t)  The  question  is,  whether  A  committed  perjury  in  swearing 
that  he  was  R.  T.  B  deposes  that  he  made  tattoo  marks  on 
the  arm  of  R.  T.,  which  at  the  time  of  the  trial  were  not  and 
never  had  been  on  the  arm  of  A.  B  may  be  asked  and 
compelled  to  answer  the  question  whether,  many  years  after 
the  tattooing,  and  many  years  before  the  occasion  on  which 
he  was  examined,  he  committed  adultery  with  the  wife  of 
one  of  his  friends.1 

Article  130. 
a^cltjsion    of  evidence   to   contradict    answers  to 
questions  testing  veracity. 
When    a  witness    under   cross-examination    has    been 


*  See  Note  XLVII. 
1  R.  v.  Orton,    See  summing-up  of  Cockburn,  C.  J.,  p. 
719,  &c. 


146  A    DIGEST   OF  [PART   III. 

asked  and  has  answered  any  question  which  is  relevant  tr 
the  inquiry  only  in  so  far  as  it  tends  to  shake  his  credit  bj 
injuring  his  character,  no  evidence  can  be  given  to  contra 
diet  him  except  in  the  following  cases  : — l 

(1)  If  a  witness  is  asked  whether  he  has  been  previously 
convicted  of  any  felony  or  misdemeanor,  and  denies  or 
does  not  admit  it,  or  refuses  to  answer,  evidence  may  be 
given  of  his  previous  conviction  thereof.2 

(2)  If  a  witness  is  asked  any  question  tending  to  show 
that  he  is  not  impartial,  and  answers  it  by  denying  the 
facts  suggested,  he  may  be  contradicted.8 

Article  131.* 
statements  inconsistent  with  present  testimony 

may  be  proved. 
Every  witness  under  cross-examination  in  any  proceed- 
ing, civil  or  criminal,  may  be  asked  whether  he  has  made 
any  former  statement  relative  to  the  subject  matter  of  the 
action  and  inconsistent  with  his  present  testimony,  the 
circumstances  of  the  supposed  statement  being  referred  to 
sufficiently  to  designate  the  particular  occasion,  and  if  ho 
does  not  distinctly  admit  that  he  has  made  such  a  state- 
ment, proof  may  be  given  that  he  did  in  fact  make  it 


*  See   Note  XLVIII. 

1  A.  G.  v.  Hitchcock,  1  Ex.  91,  99-105.     See,  too,  Palmer  v. 
Trower,  8  Ex.  247. 

2  28  &  29  Vict.  c.  18,  s.  6. 

8  A.  G.  v   Hitchcock,  1  Ex.  91,  pp.  100,  105. 


CliAP.  XVI.]         THE   LAW   OF   EVIDENCE.  147 

The  same  course  may  be  taken  with  a  witness  upon  hi3 
examination  in  chief,  if  the  judge  is  of  the  opinion  that 
he  is  [hostile]  to  the  party  by  whom  he  is  called  and  per- 
mits the  question. 

Article  132. 
cross-examination   as    to    previous    statements    in 

WRITING. 

A  witness  under  cross-examination  [or  a  witness  whom 
the  judge,  under  the  provisions  of  article  131,  has  permit- 
ted to  be  examined  by  the  party  who  called  him  as  to  pre- 
vious statements  inconsistent  with  his  present  testimony] 
may  be  questioned  as  to  previous  statements  made  by  him 
in  writing,  or  reduced  into  writing,  relative  to  the  subject 
matter  of  the  cause,  without  such  writing  being  shown  to 
him  [or  being  proved  in  the  first  instance] ;  but  if  it  is 
intended  to  contradict  him  by  the  writing,  his  attention 
must,  before  such  contradictory  proof  can  be  given,  be 
called  to  those  parts  of  the  writing  which  are  to  be  used 
for  the  purpose  of  contradicting  him.  The  judge  may,  at 
any  time  during  the  trial,  require  the  document  to  be  pro- 
duced for  his  inspection,  and  may  thereupon  make  such 
use  of  it  for  the  purposes  of  the  trial  as  he  thinks  fit.1 


i  17  &  13  Vict.  c.  125  s.  24;  and  28  Vict.  c.  18,  s.  5.  I 
think  the  words  between  brackets  represent  the  meaning  of  the 
sections,  but  in  terms  they  apply  only  to  witnesses  under  cross- 
examination — "  Witnesses  may  be  cross-examined,"  &c. 


148  a  digest  of  [part  iii. 

Article  133. 
impeaching  credit  of  witness. 

The  credit  of  any  witness  may  be  impeached  by  the 
adverse  party,  by  the  evidence  of  persons  who  swear  that 
they,  from  their  knowledge  of  the  witness,  believe  him  to 
be  unworthy  of  credit  upon  his  oath.  Such  persons  may 
not,  upon  their  examination  in  chief,  give  reasons  for  their 
belief,  but  they  may  be  asked  their  reasons  in  cross-exam- 
ination, and  their  answers  cannot  be  contradicted.1 

No  such  evidence  may  be  given  by  the  party  by  whom 
any  witness  is  called,2  but,  when  such  evidence  Is  given  by 
the  adverse  party,  the  party  who  called  the  witness  may 
give  evidence  in  reply  to  show  that  the  witness  is  worthy 
of  credit.* 

Article  134. 
offences  against  women. 
When  a  man  is  prosecuted  for  rape  or  an  attempt  to 
ravish,  it  may  be  shown  that  the  woman  against  whom  the 
offence  was  committed  was  of  a  generally  immoral  char- 
acter, although  she  is  not  cross-examined  on  the  subject.* 
The  woman  may,  in  such  a  case,  be  asked  whether  she  has 


»  2  Ph.  Ev.  503-4;  T.  E.  ss.  1324-5. 

■  17  &  18  Vict.  c.  125,  s.  2;  and  28  Vict.  c.  18,  s.  8. 

»  2  Ph.  Ev.  504. 

«  R.  v.  Clarke,  2  Star.  241. 


Chap.  XVI.]       the  law  of  evidence.  149 

had  connection  with  other  men,  but  her  answer  cannot  be 
contradicted.1  She  may  also  be  asked  whether  she  has 
had  connection  on  other  occasions  with  the  prisoner,  and 
if  she  denies  it  she  [probably]  may  be  contradicted.2 

Article  135. 
what  matters  may  be  proved  in  reference  to 
declarations  relevant  under  articles  25-34. 
Whenever  any  declaration  or  statement  relevant  under 
articles  25-34,  both  inclusive,  is  proved,  all  matters  may 
be  proved  in  order  to  contradict  it,  or  in  order  to  impeach 
or  confirm  the  credit  of  the  person  by  whom  it  was  made 
which  might  have  been  proved  if  that  person  had  been 
called  as  a  witness,  and  had  denied  upon  cross-examina- 
tion the  truth  of  the  matter  suggested.5 

Article  136. 
refreshing  memory. 
A  witness  may,  while  under  examination,  refresh  hia 
memory  by  referring  to  any  writing  made  by  himself  at  the 


1  R.  v.  Holmes,  L.  R.  1  C.  C.  R,  334. 

2  R.  v.  Martin,  6  C.  &  P.  562,  and  remarks  in  R.  v.  Holmes, 
p.  337,  per  Kelly,  C.  B. 

3  R.  v.  Drummond,  1  Lea.  338.  R.  v.  Pike,  3  C.  &  P.  593. 
In  these  cases  dying  declarations  were  excluded,  because  the 
persons  by  whom  they  were  made  would  have  been  incompe- 
tent as  witnesses,  but  the  principle  would  obviously  apply  to 
all  the  cases  in  question. 


150  A   DIGEST    OF  [PART    III. 

time  of  the  transaction  concerning  which  he  is  questioned, 
or  so  soon  afterwards  that  the  judge  considers  it  likely  that 
the  transaction  was  at  that  time  fresh  in  his  memory. 

The  witness  may  also  refer  to  any  such  writing  made  by 
any  other  person,  and  read  by  the  witness  within  the  time 
aforesaid,  if  when  he  read  it  he  knew  it  to  be  correct.1 

An  expert  may  refresh  his  memory  by  reference  to 
professional  treatises.2 

Article  137. 
right  of  adverse  party  as  to  writing  used  to 
refresh  memory. 
Any  writing  referred  to  under  article  136  must  be  pro- 
duced and  shown  to  the  adverse  party  if  he  requires  it; 
and  such  party  may;  if  he  pleases,  cross-examine  the  wit- 
ness thereupon.3 

Article  138. 

giving,    as    evidence,    document     called    for    and 

produced  on  notice 

"When  a  party  calls  for  a  document  which  he  has  given 

the  other  party  notice  to  produce,  and  such  document  is 

produced  to,  and  inspected  by,  the  party  calling  for  its 


»  2  Ph.  Ev.  4S0,  .Sec;  T.  E  ss.  1264-70;   R.  N.  P.  194-5. 
*  Sussex  Peerage  Case,  11  C.       F.  114-17. 
»  See  cases  in  R.  N.  P.  195. 


Chap.  XVI.]       the  law  of  evidence.  151 

production,  he  is  bound  to  give  it  as  evidence  if  the  party 
producing  it  requires  him  to  do  so,  and  if  it  is  relevant.1 

Article  139. 
using  as  evidence  a  document,  production  op 

which  was  refused  on  notice. 
When  a  party  refuses  to  produce  a  document  which  he 
has  had  notice  to  produce,  he  may  not  afterwards  use  the 
document  as  evidence  without  the  consent  of  the  other 
party.5  

1  Wharam  v.  Routledge,  1  Esp.  235 ;   Calvert  v.  Flower,  7 
C.  &  P.  886. 

2  Doe  v.  Hodgson,  12  A.  &  E.  135 ;  but  see  remarks  in  2  Ph. 
Ev.  270. 


16a  A  digest  off  [Part  III. 


CHAPTER  XVLL 

OF  IMPROPER  ADMISSION  AND  REJECTION  OF 

EVIDENCE. 

Article  140. 
A  new  trial  will  not  be  granted  in  any  civil  action  on  the 
ground  of  the  improper  admission  or  rejection  of  evidence, 
unless,  in  the  opinion  of  the  Court  to  which  the  applica- 
tion is  made,  some  substantial  wrong  or  miscarriage  has 
been  thereby  occasioned  in  the  trial  of  the  action.1 

If  in  a  criminal  case  evidence  is  improperly  rejected  or 
admitted,  there  is  no  remedy,  unless  the  prisoner  is  con- 
victed, and  unless  the  judge,  in  his  discretion,  states  ■% 
case  for  the  Court  for  Crown  Cases  Reserved ;  but  if  tb"\t 
Court  is  of  opinion  that  any  evidence  was  improperly  r  V 
mitted  or  rejected,  it  must  set  aside  the  conviction. 


1  Judicature  Act,  1675,  Order  xxxix,  8. 


Notes.]  the  law  of  evidence.  163 


APPENDIX  OF  NOTES. 


NOTE  L 
(to  Article  1.) 

For  the  definition  of  fact,  see  Bentham  '  Judicial  Evi- 
dence,' vol.  1,  pp.  39-50.  See,  too,  my  'Introduction  to 
the  Indian  Evidence  Act,'  pp.  14r-16.  The  definition  of 
the  word  "Document"  is  taken  from  the  Indian  Penal 
Code,  s.  29.     See,  too,  the  Indian  Evidence  Act,  s.  12. 

The  definitions  are  simply  explanations  of  the  senses 
in  which  the  words  defined  are  used  in  this  work.  They 
will  be  found,  however,  to  explain  the  manner  in  which  it 
is  arranged. 

I  use  the  word  presumption  in  the  sense  of  a  presump- 
tion of  law  capable  of  being  rebutted.  A  presumption  of 
fact  is  simply  an  argument.  A  conclusive  presumption  I 
describe  as  conclusive  proof.  Hence  the  few  presumptions 
of  law  which  I  have  thought  it  necessary  to  notice  are  the 
onlv  ones  I  have  to  deal  wiv  v 


154  A   DIGEST   OF  [NOTES. 

NOTE  EL 
(to  Article  2.) 

See  1  Ph.  Ev.  493,  &c. ;  Best,  ss.  Ill  and  251 ;  T.  E. 
chap,  ii,  pt.  ii. 

For  instances  of  relevant  evidence  held  to  be  insufficient 
for  the  purpose  for  which  it  was  tendered,  on  the  ground 

of  remoteness,  see  R.  v. ,  2  C.  &  P.  459 ;  and  Mann 

v.  Langton,  3A.&E.  699. 

Mr.  Taylor  (s.  867)  adopts  from  Professor  Grcenleaf  the 
statement  that  "the  law  excludes  on  public  grounds  .  .  . 
evidence  which  is  indecent  or  offensive  to  public  morals, 
or  injurious  to  the  feelings  of  third  persons."  The  author- 
ities given  for  this  are  actions  on  wagers  which  the  Court 
refused  to  try,  or  in  which  they  arrested  judgment  because 
the  wagers  were  in  themselves  impertinent  and  offensive, 
as,  for  instance,  a  wager  as  to  the  sex  of  the  Chevalier 
D'Eon  {Da  Costa  v.  Jones,  Cowp.  729).  No  action  now 
lies  upon  a  wager,  and  I  fear  that  there  is  no  authority  for 
the  proposition  advanced  by  Professor  Greenleaf.  I  know 
of  no  case  in  which  a  fact  in  issue  or  relevant  to  an  issue 
which  the  Court  is  bound  to  try  can  be  excluded  merely 
because  it  would  pain  some  one  who  is  a  stranger  to  the 
action.  Indeed,  in  Da  Costa  v.  Jones,  Lord  Mansfield 
said  expressly,  "Indecency  of  evidence  is  no  objection  to 
its  being  received  where  it  is  necessary  to  the  decision  of  a 
civil  or  criminal  right"  (p.  734).  (See  article  129,  and 
Note  XLVIL) 


Notes.]  the  law  of  evldexce.  155 

NOTE  EEL 
(to  Article  4.) 
On  this  subject  see  also  1  Ph.  Ev.  157-164;  T.  E.  ss. 

527-532 ;  Best,  s.  508 ;  3  Kuss.  on  Crimes,  by  Greaves, 
161-7.  (See,  too,  the  Queen's  case,  2  Br.  &Bing.  309-10.) 
The  principle  is  substantially  the  same  as  that  of  prin- 
cipal and  accessory,  or  principal  and  agent.  When  various 
persons  conspire  to  commit  an  offence,  each  makes  the 
rest  his  agents  to  carry  the  plan  into  execution.  (See,  too, 
article  17,  Note  XII.) 

NOTE  IV. 
(to  Article  5.) 

The  principle  is  fully  explained  and  illustrated  in  Mal- 
cohnson  v.  O'Dea,  10  H.  of  L.  593.  See  particularly  the 
reply  to  the  questions  put  by  the  House  of  Lords  to  the 
Judges,  delivered  by  Willes,  J.,  611-22. 

See  also  1  Ph.  Ev.  234-9;  T.  E.  ss.  593-601;  Best,  s.  499. 

Mr.  Phillips  and  Mr.  Taylor  treat  this  principle  as  an 
exception  to  the  rule  excluding  hearsay.  They  regard  the 
statements  contained  in  the  title-deeds  as  written  state- 
ments made  by  persons  not  called  as  witnesses.  I  think 
the  deeds  must  be  regarded  as  constituting  the  transac- 
tions which  they  effect;  and  in  the  case  supposed  in  the 
text,  those  transactions  are  actually  in  issue.  When  it  is 
asserted  that  land  belongs  to  A,  what  is  meant  is,  that  A 
is  entitled  to  it  by  a  series  of  transactions  of  which  his 


156  A   DIGEST    OF  [NOTES. 

title-deeds  are  by  law  the  exclusive  evidence  (see  article 
40).  The  existence  of  the  deeds  is  thus  the  very  fact 
which  is  to  be  proved. 

Mr.  Best  treats  the  case  as  one  of  "derivative  evidence," 
an  expression  which  does  not  appear  to  me  felicitous. 

It  will  be  observed  that  articles  2-6  refer  to  facts,  either 
strictly  in  issue,  or  so  closely  connected  with  facts  in  issue 
as  to  be  of  the  same  nature.  Articles  7,  8,  9,  refer  to  facts 
which  would  usually  be  described  by  the  phrase,  "  circum- 
stantial evidence." 

NOTE  V. 
(to  Article  7.) 
The  items  of  evidence  included  in  this  article  are  often 
referred  to  by  the  phrase  "res  gestae,"  which  seems  to 
have  come  into  use  on  account  of  its  convenient  obscurity. 
The  doctrine  of  "res  gestae"  was  much  discussed  in  the 
case  of  Doe  v.  Tatham  (p.  79,  &c).  In  the  course  of  the 
argument,  Bosanquet,  J.,  observed,  "How  do  you  trans- 
late res  gestae?  gestae,  by  whom?"  Parke,  B.,  afterwards 
observed,  "The  acts  by  whomsoever  done  are  res  gestae,  if 
relevant  to  the  matter  in  issue.  But  the  question  is,  what 
are  relevant?"  (7  A.  &  E.  353.)  In  delivering  his  opinion 
to  the  House  of  Lords,  the  same  Judge  laid  down  the  rule 
thus:  "Where  any  facts  are  proper  evidence  upon  an 
issue  [i.  e.  when  they  are  in  issue,  or  relevant  to  the  issue] 
all  oral  or  written  declarations  which  can  explain  such 
facts  may  be  received  in  evidence."     (Same  case,  4  Bing. 


Notes.]  the  law  of  evidence.  157 

N.  C.  548.)  The  question  asked  by  Baron  Parke  goes  to 
the  root  of  the  whole  subject,  and  I  have  tried  to  answer 
it  at  length  in  the  text,  and  to  give  it  the  prominence  in 
the  statement  of  the  law  which  its  importance  deserves. 

Besides  the  cases  cited  in  the  illustrations,  see  cases  as 
to  statements  accompanying  acts  collected  in  1  Ph.  Ev. 
152-7,  and  T.  E.  ss.  521,  528.  I  have  stated,  in  accord- 
ance with  R.  v.  Walker,  2  M.  &  K.  212,  that  the  particu- 
lars of  a  complaint  are  not  admissible;  but  I  have  heard 
Willes,  J.,  rule  they  were  on  several  occasions,  vouching 
Parke,  B.,  as  his  authority.  R.  v.  Walker  was  decided  by 
Parke,  B.,  in  1839.  Though  he  excluded  the  statement, 
he  said,  "  the  sense  of  the  thing  certainly  is,  that  the  jury 
should  in  the  first  instance  know  the  nature  of  the  com- 
plaint made  by  the  prosecutrix,  and  all  that  she  then  said. 
But  for  reasons  which  I  never  could  understand,  the  usage 
has  obtained  that  the  prosecutrix's  counsel  should  only 
inquire  generally  whether  a  complaint  was  made  by  the 
prosecutrix  of  the  prisoner's  conduct  towards  her,  leaving 
the  prisoner's  counsel  to  bring  before  the  jury  the  particu- 
lars of  that  complaint  by  cross-examination." 

Baron  Bramwell  has  been  in  the  habit,  of  late  years,  of 
admitting  the  complaint  itself.  The  practice  is  certainly 
in  accordance  with  common  sense. 

NOTE  VL 
(to  Article  9.) 
This  is  taken    (with   some  verbal    alterations)  from  a 


158  A    DIGEST    OK  [NOTES. 

pamphlet  called  '  The  Theory  of  Relevancy  for  the  pur- 
pose of  Judicial  Evidence,  by  George  Clifford  Whitworth, 
Bombay  Civil  Service.     Bomba}r,  1875.' 

The  7th  section  of  the  Indian  Evidence  Act  is  as  fol- 
lows: "Facts  which  are  the  occasion,  cause  or  effect,  im- 
mediate or  otherwise,  of  relevant  facts  or  facts  in  issue,  or 
which  constitute  the  state  of  things  under  which  they 
happened,  or  which  afforded  an  opportunity  for  their  oc- 
currence or  transaction,  are  relevant." 

The  11th  section  is  as  follows : 

"Facts  not  otherwise  relevant  are  relevant; 

"(1)  If  they  are  inconsistent  with  any  fact  in  issue  or 
relevant  fact ; 

"  (2)  If  by  themselves,  or  in  connection  with  other  facts, 
they  make  the  existence  or  non-existence  of  any  fact  in 
issue,  or  relevant  fact,  highly  probable  or  improbable." 

In  my  'Introduction  to  the  Indian  Evidence  Act'  I  ex- 
amined at  length  the  theory  of  judicial  evidence,  and 
tried  to -show  that  the  theory  of  relevancy  is  only  a  par- 
ticular case  of  the  process  of  induction,  and  that  it  de- 
pends on  the  connection  of  events  as  cause  and  effect. 
This  theory  does  not  greatly  differ  from  Bentham's, 
though  he  does  not  seem  to  me  to  have  grasped  it  as 
distinctly  as  he  probably  would  if  he  had  lived  to  study 
Mr.  Mill's  Inductive  Logic. 

My  theory  was  expressed  too  widely  in  certain  parts, 
and  not  widely  enough  in  others ;  and  Mr.  Whitworth's 
pamphlet  appears  to  me  to  have  corrected  and  completed 


Notes.]  the  law  of  evidence.  159 

it  in  a  judicious  manner.  I  have  accordingly  embodied 
his  definition  of  relevancy,  with  some  variations  and  ad- 
ditions, in  the  text.  The  necessity  of  limiting  in  some 
such  way  the  terms  of  the  11th  section  of  the  Indian  Evi- 
dence Act  may  be  inferred  from  a  judgment  by  Mr.  Jus- 
tice West  (of  the  High  Court  of  Bombay),  in  the  case  of 
R.  v.  Parbhudas  and  others,  printed  in  the  'Law  Journal,' 
May  27,  1876. 

As  to  the  coincidence  of  this  theory  with  English  law,  I 
can  only  say  that  it  will  be  found  to  supply  a  key  which 
will  explain  all  that  is  said  on  the  subject  of  circumstan- 
tial evidence  by  the  writers  who  have  treated  of  that 
subject.  Mr.  "Whitworth  goes  through  the  evidence  given 
against  the  German,  Miiller,  executed  for  murdering  Mr. 
Briggs,  on  the  North  London  Railway,  and  shows  how 
each  item  of  it  can  be  referred  to  one  or  the  other  of  the 
heads  of  relevancy  which  he  discusses. 

It  is  not  necessary  to  give  specific  authority  for  the 
illustrations.  They  are  too  obvious  to  be  noticed  in  re- 
ported cases,  but  they  might  all  be  justified  by  reference 
to  different  parts  of  Palmer's  case.  The  last  illustration 
was  suggested  by  the  case  of  Courvoisier. 

The  theory  of  relevancy  contained  in  this  article  would, 
I  believe,  suffice  to  solve  every  question  which  can  arise 
upon  the  subject;  but  as  questions  connected  with  it  have 
been  raised  and  decided  in  many  different  forms,  it  is 
necessary  in  a  Digest  of  the  Law  of  Evidence  to  notice 
them.     The  principles,  however,  which  are  embodied  in 


160  A  DIGEST   OF  [NOTES. 

articles  3-8  are  only  particular  applications  of  the  general 
principle  stated  in  the  article.  It  might,  no  doubt,  be 
expressed  very  shortly  by  saying  that  every  fact  is  relevant 
to  every  other,  if  it  affects  in  any  definite  way  the  proba- 
bility of  its  occurence.  This,  however,  would  throw  no 
light  on  the  question  how  facts  affect  the  probability  of  the 
occurrence  of  other  facts ;  and,  to  obtain  a  real  mastery  of 
the  principles  of  evidence,  it  is  necessary  to  have  clear 
views  on  this  subject. 

NOTE  vn. 
(to  Articles  10,  11,  12.) 

Article  10  is  equivalent  to  the  maxim,  "Res  inter  alios 
acta  alteri  nocere  non  debet,"  which  i?  explained  and  com- 
mented on  in  Best,  ss.  506-510  (though  I  should  scarcely 
adopt  his  explanation  of  it),  and  by  Broom  ('Maxims,' 
954-968).  The  application  of  the  maxim  to  the  Law  of 
Evidence  is  obscure,  because  it  does  not  show  how  uncon- 
nected transactions  should  be  supposed  to  be  relevant  to 
each  other.  The  meaning  of  the  rule  must  be  inferred 
from  the  exceptions  to  it,  stated  in  articles  11  and  12,  which 
show  that  it  means,  You  are  not  to  draw  inferences  from 
one  transaction  to  another  which  is  not  specifically  con- 
nected with  it,  merely  because  the  two  resemble  each  other. 
They  must  be  linked  together  by  the  chain  of  cause  and 
effect  in  some  assignable  way  before  you  can  draw  your 
inference. 

In  its  literal  sense  the  maxim  also  fails,  because  it  is  not 


Notes.]  the  law  of  evidence.  161 

true  that  a  man  cannot  be  affected  by  transactions  to  which 
he  is  not  a  part}-.  Illustrations  to  the  contrary  are  obvious 
and  innumerable;  bankruptcy,  marriage,  indeed  every 
transaction  of  life,  would  supply  them. 

The  exceptions  to  the  rule  given  in  articles  11  and  12 
are  generalized  from  the  cases  referred  to  in  the  illustra- 
tions. It  is  important  to  observe  that  though  the  rule  is 
expressed  shortly,  and  is  sparingly  illustrated,  it  is  of  very 
much  greater  importance  and  more  frequent  application 
than  the  exceptions.  The  exceptions  apply  more  frequently 
to  criminal  than  to  civil  proceedings,  and  in  criminal  cases 
the  Courts  are  always  disinclined  to  run  the  risk  of  preju- 
dicing the  prisoner  by  permitting  matters  to  be  proved 
which  tend  to  show  in  general  that  he  is  a  bad  man,  and 
so  likely  to  commit  a  crime.  In  each  of  the  cases  by 
which  article  12  is  illustrated,  the  evidence  admitted  went 
to  prove  the  true  character  of  facts  which,  standing  alone, 
might  naturally  have  been  accounted  for  on  the  supposi- 
tion of  accident — a  supposition  which  was  rebutted  by 
the  repetition  of  similar  occurrences.  In  the  case  of  R. 
v.  Gray,  (Illustration  (a) ),  there  were  many  other  circum- 
stances which  would  have  been  sufficient  to  prove  the 
prisoner's  guilt,  apart  from  the  previous  fires.  That  part 
of  the  evidence,  indeed,  seemed  to  have  little  influence  on 
the  jury.  Garner's  case  (Illustration  (c),  note)  was  an  ex- 
traordinary one,  and  its  result  was  in  every  way  unsatis- 
factory.   Some  account  of  this  case  will  be  found  in  the 


162  A  DIGEST   OF  [NOTES. 

evidence  given  by  me  before  the  Commission  on  Capital 
Punishments,  which  sat  in  1866. 

NOTE  VITL 
(to  Article  13.) 
As  to  presumptions  arising  from  the  course  of  office  or 
business,  see  Best,  s.  403;  1  Ph.  Ev.  480-4;  T.  E.  s.  147. 
The  presumption,  "Omnia  esse  rite  acta,"  also  applies. 
See  Broom's  'Maxims,'  942;  Best,  ss.  353-365;  T.  K  s. 
124,  &c. ;  1  Ph.  Ev.  480 ;  and  Star.  757,  763. 

NOTE  IX. 
(to  Article  14.) 
The  unsatisfactory  character  of  the  definitions  usually 
given  of  hearsay  is  well  known.  See  Best,  s.  495 ;  T.  E. 
ss.  507-510.  The  definition  given  by  Mr.  Phillips  suffi- 
ciently exemplifies  it:  "When  a  witness,  in  the  course  of 
stating  what  has  come  under  the  cognizance  of  his  own 
senses  concerning  a  matter  in  dispute,  states  the  language 
of  others  which  he  has  heard,  or  produces  papers  which  he 
identifies  as  being  written  by  particular  individuals,  he 
offers  what  is  called  hearsay  evidence.  This  matter  may 
sometimes  be  the  very  matter  in  dispute,"  <fec.  (1  Ph. 
Ev.  143).  If  this  definition  is  correct,  the  maxim,  "  Hear- 
say is  no  evidence,"  can  only  be  saved  from  the  charge  of 
falsehood  by  exceptions  which  make  nonsense  of  it.  By 
attaching  to  it  the  meaning  given  in  the  text,  it  becomes 
both  intelligible  and  true.     There  is  no  real  difference 


Notes.]  the  law  of  evidence  163 

between  the  fact  that  a  man  was  heard  to  say  this  or  that, 
and  any  other  fact.  Words  spoken  may  convey  a  threat, 
supply  the  motive  for  the  crime,  constitute  a  contract, 
amount  to  slander,  &c,  &c. ;  and  if  relevant  or  in  issue, 
on  these  or  other  grounds,  they  must  be  proved,  like  other 
fac  ts,  by  the  oath  of  some  one  who  heard  them.  The 
important  point  to  remember  about  them  is  that  bare  as- 
sertion must  not,  generally  speaking,  be  regarded  as  rele- 
vant to  the  truth  of  the  matter  asserted. 

The  doctrine  of  hearsay  evidence  was  fully  discussed  by 
many  of  the  judges  in  the  case  of  Doe  d.  Wright  v. 
Tatham  on  the  different  occasions  when  that  case  came 
before  the  Court  (see  7  A.  &  E.  313-408 ;  4  Bing.  N.  C. 
489-573).  The  question  was,  whether  letters  addressed  to 
a  deceased  testator,  implying  that  the  writers  thought  him 
sane,  but  not  acted  upon  by  him,  could  be  regarded  as 
relevant  to  his  sanity,  which  was  the  point  in  issue.  The 
case  sets  the  stringency  of  the  rule  against  hearsay  in  a 
light  which  is  forcibly  illustrated  by  a  passage  in  the 
judgment  of  Baron  Parke  (7  A.  &  E.  385-8),  to  the  fol- 
lowing effect: — He  treats  the  letters  as  "statements  of  the 
writers,  not  on  oath,  of  the  truth  of  the  matter  in  ques- 
tion, with  this  addition,  that  they  have  acted  upon  the 
statements  on  the  faith  of  their  being  true  by  their  send- 
ing the  letters  to  the  testator."  He  then  goes  through  a 
variety  of  illustrations,  which  had  been  suggested  in  argu- 
ment, to  show  that  in  no  case  ought  such  statements  to  be 
regarded  as  relevant  to  the  truth  of  the  matter   stated, 


164  A   DIGEST    OF  [NOTES. 

even  when  the  circumstances  were  such  as  to  give  the 
strongest  possible  guarantee  that  such  statements  ex- 
pressed the  honest  opinions  of  the  persons  who  made  them. 
Amongst  others,  he  mentioned  the  following: — "The con- 
duct of  the  family  or  relations  of  a  testator,  taking  the 
same  precautions  in  his  absence  as  if  he  were  a  lunatic— 
his  election  in  his  absence  to  some  high  and  responsible 
office ;  the  conduct  of  a  physician  who  permitted  a  will  to 
be  executed  by  a  sick  testator;  the  conduct  of  a  deceased 
captain  on  a  question  of  seaworthiness,  who,  after  exam- 
ining every  part  of  a  vessel,  embarked  in  it  with  his  fam- 
ily; all  these,  when  deliberately  considered,  are,  with 
reference  to  the  matter  in  issue  in  each  case,  mere  instances 
of  hearsay  evidence — mere  statements,  not  on  oath,  but 
implied  in,  or  vouched  by,  the  actual  conduct  of  persons 
by  whose  acts  the  litigant  parties  are  not  to  be  bound." 
All  these  matters  are,  therefore,  to  be  treated  as  irrelevant 
to  the  questions  at  issue. 

These  observations  make  the  rule  quite  distinct,  but  the 
reason  suggested  for  it  in  the  concluding  words  of  the 
passage  extracted  appears  to  be  weak.  That  passage  im- 
plies that  hearsay  is  excluded  because  no  one  "  ought  to 
be  bound  by  the  act  of  a  stranger."  That  no  one  shall 
have  power  to  make  a  contract  for  another,  or  commit  a 
crime,  for  which  that  other  is  to  be  responsible  without 
his  authority,  is  obviously  reasonable,  but  it  is  not  so  plain 
why  A's  conduct  should  not  furnish  good  grounds  for  in- 
ference as  to  B's  conduct,  though  it  was  not  authorized 


Notes.]  the  law  of  evidence.  165 

by  B.  The  importance  of  shortening  proceedings,  the 
importance  of  compelling  people  to  procure  the  best  evi- 
dence they  can,  and  the  importance  of  excluding  opportu- 
nities of  fraud,  are  considerations  which  probably  justify 
the  rule  excluding  hearsay;  but  Baron  Parke's  illustra- 
tions of  its  operation  clearly  prove  that  in  some  cases  it 
excludes  the  proof  of  matter  which,  but  for  it,  would  be 
regarded  not  only  as  relevant  to  particular  facts,  but  as 
good  grounds  for  believing  in  their  existence. 

NOTE  X. 
(to  Article  15.) 
This  definition  is  intended  to  exclude  admissions  by 
pleading,  admissions  which,  if  so  pleaded,  amount  to 
estoppels,  and  admissions  made  for  the  purposes  of  a 
cause  by  the  parties  or  their  solicitors.  These  subjects 
are  usually  treated  of  by  writers  on  evidence;  but  they 
appear  to  me  to  belong  to  other  departments  of  the  law. 
The  subject,  including  the  matter  which  I  omit,  is  treated 
at  length  in  1  Ph.  Ev.  308-401,  and  T.  E.  ss.  653-788.  A 
vast  variety  of  cases  upon  admissions  of  every  sort  may 
be  found  by  referring  to  Roscoe  N.  P.  (Index,  under  the 
word  Admissions.)  It  may  perhaps  be  well  to  observe 
that  when  an  admission  is  contained  in  a  document,  or 
series  of  documents,  or  when  it  forms  part  of  a  discourse 
or  conversation,  so  much  and  no  more  of  the  document, 
series  of  documents,  discourse  or  conversation,  must  be 
proved  as  is  necessary  for  the  full  understanding  of  the 


166  a  digest  ov  [Notes. 

admission,  but  the  judge  or  jury  may,  of  course,  attach 
degrees  of  credit  to  different  parts  of  the  matter  proved. 
This  rule  is  elaborately  discussed  and  illustrated  by  Mr. 
Taylor,  ss.  G55-665.  It  has  lost  much  of  the  importance 
which  attached  to  it  when  parties  to  actions  could  not  be 
witnesses,  but  could  be  compelled  to  make  admissions  by 
bills  of  discovery.  The  ingenuity  of  equity  draughtsmen 
was  under  that  system  greatly  exercised  in  drawing 
answers  in  such  a  form  that  it  was  impossible  to  read  part 
of  them  without  reading  the  whole,  and  the  ingenuity  of 
the  Court  was  at  least  as  much  exercised  in  countermining 
their  ingenious  devices.  The  power  of  administering 
interrogatories,  and  of  examining  the  parties  directly, 
has  made  great  changes  in  these  matters. 

NOTE  XI. 

(to  Article  16.) 

As  to  admissions  by  parties,  see  Moriarty  v.  L.  C.  $  D. 
Railway,  L.  R.  5  Q.  B.  320,  per  Blackburn,  J.;  Alner  v. 
George,  1  Camp.  392 ;  Bauerman  v.  Radenius,  7  T.  R.  663. 

As  to  admissions  by  parties  interested,  see  Spargo  v. 
Brown,  9  B.  &  C.  938. 

See  also  on  the  subject  of  this  article,  1  Ph.  Ev.  362-3, 
869,  398;  and  T.  E.  ss.  669-671,  685,  687,  719;  Roscoe, 
N.  P.  71. 

As  to  admissions  by  privies,  see  1  Ph.  Ev.  394-7,  and 
T.  E.  (from  Greenleaf),  s.  712. 


Notes.]  the  law  oe  evidence.  167 

NOTE  xn. 
(to  Article  17.) 

The  subject  of  the  relevancy  of  admissions  by  agents 
is  rendered  difficult  by  the  vast  variety  of  forms  which 
agency  assumes,  and  by  the  distinction  between  an  agent 
for  the  purpose  of  making  a  statement  and  an  agent  for 
the  purpose  of  transacting  business.  If  A  sends  a  mes- 
sage by  B,  B's-  words  in  delivering  it  are  in  effect  A's;  but 
B's  statement  in  relation  to  the  subject  matter  of  the  mes- 
sage have,  as  such,  no  special  value.  A's  own  statements 
are  valuable  if  they  suggest  an  inference  which  he  after- 
wards contests  because  they  are  against  his  interest ;  but 
when  the  agent's  duty  is  done,  he  has  no  special  interest 
in  the  matter. 

The  principle  as  to  admissions  by  agents  is  stated  and 
explained  by  Sir  W.  Grant,  in  Fairlie  v.  Hastings,  10  Ve. 
126-7. 

NOTE  XIII. 

(to  Article  18.) 
See,   for  a  third  exception  (which  could  hardly  occur 
now),  Clay  v.  Langslow,  M.  &  M.  45. 

NOTE  XIV. 
(to  Article  19.) 
This  comes  very  near  to  the  case  of  arbitration.     See,  as 
to  irregular  arbitrations  of  this  kind,  1  Ph.  Ev.  383 ;  T.  E. 
bs.  689-90. 


168  A   DIGEST    OF  [NOTES. 

NOTE  XV. 
(to  Article  20.) 
See  more  on  this  subject  in  1  Ph.  Ev.  32G-8 ;  T.  E.  ss. 
702,  720-3 ;  K.  N.  P.  66. 

NOTE  XVI. 
(to  Article  22.) 

On  the  law  as  to  confessions,  see  1  Ph.  Ev.  401  423;  T. 
E.  ss.  796-807,  and  s.  824 ;  Best,  ss.  551-574 ;  Roscoe,  Cr. 
Ev.  38-56;  3  Puss,  on  Crimes,  by  Greaves,  365-436.  Joy 
on  Confessions  reduces  the  law  on  the  subject  to  the  shape 
of  13  propositions,  the  effect  of  all  of  which  is  given  in 
the  text  in  a  different  form. 

Main'  cases  have  been  decided  as  to  the  language  which 
amounts  to  an  inducement  to  confess  (see  Pvoscoe,  Cr.  Ev. 
40-3,  where  most  of  them  are  collected).  They  are,  how- 
ever, for  practical  purposes,  summed  up  in  R.  v.  Baldry, 
2  Den.  430,  which  is  the  authority  for  the  last  lines  of  the 
first  paragraph  of  this  article. 

NOTE  XVLL 

(to  Article  23.) 

Cases  are  sometimes  cited  to  show  that  if  a  person  is 

examined  as  a  witness  on  oath,  his  deposition  cannot  be 

used  in  evidence  against  him  afterwards  (see  T.  E.  ss.  800 

and  818,  n.  6;  also  3  Kuss.  on  Cri.,  by  Greaves,  407>  &c). 


Notes.]  the  law  of  evidence.  169 

All  these  cases,  however,  relate  to  the  examination  before 
magistrates  of  persons  accused  of  crimes,  under  the  stat- 
utes which  were  in  force  before  11  &  12  Vict.  c.  42. 

These  statutes  authorized  the  examination  of  prisoners, 
but  not  their  examination  upon  oath.  The  11  and  12 
Vict.  c.  42,  prescribes  the  form  of  the  only  question  which 
the  magistrate  can  put  to  a  prisoner;  and  since  that  enact- 
ment it  is  scarcely  possible  to  suppose  that  any  magistrate 
would  put  a  prisoner  upon  his  oath.  The  cases  may 
therefore  be  regarded  as  obsolete. 

note  xvm. 

(to  Article  26.) 
As  to  dying  declarations,  see  1  Ph.  Ev.  239-252 ;  T.  E. 
ss.  644-652 ;  Best,  s.  505 ;  Starkie,  32  &  38 ;  3  Russ.  Cri. 
250-272  (perhaps  the  fullest  collection  of  the  cases  on  the 
subject) ;  Roscoe,  Crim.  Ev.  31-2.  R.  v.  Baker,  2  Mo.  & 
Ro.  53,  is  a  curious  case  on  this  subject.  A  and  B  were 
both  poisoned  by  eating  the  same  cake.  C  was  tried  for 
poisoning  A.  B's  dying  declaration  that  she  made  the 
cake  in  C's  presence,  and  put  nothing  bad  in  it,  was  ad- 
mitted as  against  C,  on  the  ground  that  the  whole  formed 
one  transaction. 

NOTE  XIX. 
(to  Article  27.) 
1  Ph.  Ev.  280  300 ;  T.  E.  ss.  630-643 :  Best,  501 ;  R.  N. 
P.  63 ;  and  see  note  to  Pi-ice  v.   Lord  Torrington,  2  S.  L. 
C.  328. 


170  a  digest  or  [Notes. 

NOTE  XX. 
(to  Article  28.) 

The  best  statement  of  the  law  upon  this  subject  will  be 
found  in  Higharn  v.  Ridgivay,  and  the  note  thereto,  2  S. 
L.  C.  318.  See  also  1  Ph.  Ev.  252-280 ;  T.  E.  ss.  602-629; 
Best,  s.  500;  R.N.  P.  584. 

A  class  of  cases  exist  which  I  have  not  put  into  the  form 
of  an  article,  partly  because  their  occurrence  since  the 
commutation  of  tithes  must  be  very  rare,  and  partly  be- 
cause I  find  a  great  difficulty  in  understanding  the  place 
which  the  rule  established  by  them  ought  to  occupy  in  a 
systematic  statement  of  the  law.  They  are  cases  which 
lay  down  the  rule  that  statements,  as  to  the  receipts  of 
tithes  and  moduses  made  by  deceased  rectors  and  other 
ecclesiastical  corporations  sole,  are  admissible  in  favor  of 
their  successors.  There  is  no  doubt  as  to  the  rule  (see,  in 
particular,  Short  v.  Lee,  2  Jac.  &  "Wal.  464 ;  and  Young  v. 
Clare  Hall,  17  Q.  B.  537).  The  difficulty  is  to  see  why  it 
was  ever  regarded  as  an  exception.  It  falls  directly  within 
the  principle  stated  in  the  text,  and  would  appear  to  be  an 
obvious  illustration  of  it;  but  in  many  cases  it  has  been 
declared  to  be  anomalous,  inasmuch  as  it  enables  a  prede- 
cessor in  title  to  make  evidence  in  favor  of  his  successor. 
This  suggests  that  article  28  ought  to  be  limited  by  a  pro- 
viso that  a  declaration  against  interest  is  not  relevant  if  it 
was  made  by  a  predecessc  in  title  of  the  person  who 
seeks  to  prove  it,  unless  it  is  a  declaration  by  an  ecclesi- 


Notes.]  the  law  of  evidence.  171 

astical  corporation  sole,  or  a  member  of  an  ecclesiastical 
corporation  aggregate  (see  Short  v.  Lee),  as  to  the  receipt 
of  a  tithe  or  modus. 

Some  countenance  for  such  a  proviso  may  be  found  in 
the  terms  in  which  Bay  ley,  J.,  states  the  rule  in  Gleadow 
v.  Aikin,  and  in  the  circumstance  that  when  it  first  ob- 
tained currency  the  parties  to  an  action  were  not  compe- 
tent witnesses.  But  the  rule  as  to  the  indorsement  of 
notes,  bonds,  &c,  is  distinctly  opposed  to  such  a  view. 


NOTE  XXI. 
(to  Article  30.) 

Upon  this  subject,  besides  the  authorities  in  the  text, 
seel  Ph.  Ev.  169-197;  T.  E.  ss.  543-569;  Best,  s.  497; 
R.  N.  P.  50-54  (the  latest  collection  of  cases). 

A  great  number  of  cases  have  been  decided  as  to  the 
particular  documents,  &c,  which  fall  within  the  rule  given 
in  the  text.  They  are  collected  in  the  works  referred  to 
above,  but  they  appear  to  me  merely  to  illustrate  one  or 
other  of  the  branches  of  the  rule,  and  not  to  extend  or 
vary  it.  An  award,  e.  g.,  is  not  within  the  last  branch  of 
illustration  (b),  because  it  "is  but  the  opinion  of  the 
arbitrator,  not  upon  his  own  knowledge"  (Evans  v.  Rees, 
10  A.  &  E.  155) ;  but  the  detailed  application  of  such  a 
rule  as  this  is  better  learnt  by  experience,  applied  to  a 
firm  grasp  of  principle,  than  by  an  attempt  to  recollect 
innumerable  cases. 


172  A   DIGEST    OF  [NOTES. 

Thacase  of  Weeks  v.  Sparke  is  remarkable  for  the  light 
it  throws  on  the  history  of  the  Law  of  Evidence.  It  was 
decided  in  1813,  and  contains  inter  alia  the  following 
curious  remarks  by  Lord  Ellenborough.  "  It  is  stated  to 
be  the  habit  and  practice  of  different  circuits  to  admit  this 
species  of  evidence  upon  such  a  question  as  the  present. 
That  certainly  cannot  make  the  law,  but  it  shows  at  least, 
from  the  established  practice  of  a  large  branch  of  the  pro- 
fession, and  of  the  judges  who  have  presided  at  various 
times  on  those  circuits,  what  has  been  the  prevailing  opin- 
ion upon  this  subject  amongst  so  large  a  class  of  persons 
interested  in  the  due  administration  of  the  law.  It  is 
stated  to  have  been  the  practice  both  of  the  Northern  and 
"Western  Circuits.  My  learned  predecessor,  Lord  Kenyon, 
certainly  held  a  different  opinion,  the  practice  of  the  Ox- 
ford Circuit,  of  which  he  was  a  member,  being  different.'* 
So  in  the  Berkeley  Peerage  Case,  Lord  Eldon  said,  "when 
it  was  proposed  to  read  this  deposition  as  a  declaration, 
the  Attorney-General  (Sir  Vicary  Gibbs)  flatly  objected  to 
it.  He  spoke  quite  right  as  a  Western  Circuiteer,  of  what 
he  had  often  heard  laid  down  in  the  West,  and  never  heard 
doubted"  (4  Cam.  419  a.d.  1811).  This  shows  how  very 
modern  much  of  the  Law  of  Evidence  is.  Le  Blanc,  J., 
in  Weeks  v.  Sparke,  says,  that  a  foundation  must  be  laid 
for  evidence  of  this  sort,  "by  acts  of  enjoyment  within 
living  memory."  This  seems  superfluous,  as  no  jury 
would  ever  find  that  a  public  right  of  way  existed,  which 
had  not  been  used  in  living  memory,  on  the  strength  of  a 


Notes.]  the  law  of  evidence.  173 

report  that  some  deceased  person  had  said  that  there  once 
was  such  a  right 


NOTE  XXLT. 
(to  Article  31.) 

See  1  Ph.  Ev.  197-233;  T.  E.  ss.  571-592;  Best,  633;  R. 
N.  P.  49-50. 

The  Berkeley  Peerage  Case  (Answers  of  the  Judges  to 
the  House  of  Lords),  4  Cam.  401,  which  established  the 
third  condition  given  in  the  text ;  and  Davies  v.  Lowndes, 
6  M.  &  G-.  471  (see  more  particularly  pp.  525-9,  in  which 
the  question  of  family  pedigrees  is  fully  discussed)  are 
specially  important  on  this  subject. 

As  to  declarations  as  to  the  place  of  births,  &c,  see 
Shields  v.  Boucher,  1  De  G.  &  S.  49-58. 


NOTE  XXLTL 
(to  Article  32.) 
See  also  1  Ph.  Ev.  308-8;  T.  E.  ss.  434-447  ;  Buller,  N. 
P.  238,  and  following. 

NOTE  XXIY. 

(to  Articles  39-47.) 

The  law  relating  to  the  relevancy  of  judgments  of  Courts 

of  Justice  to  the  existence  of  the  matters  which  they  assert, 

is  made  to  appear  extremely  complicated  by  the  manner  in 


174  A  DIGEST    OF  [NOTES. 

which  it  is  usually  dealt  with.  The  method  commonly 
employed  is  to  mix  up  the  question  of  the  effect  of 
judgments  of  various  kinds  with  that  of  their  admissi- 
bility, subjects  which  appear  to  belong  to  different  branches 
of  the  law. 

Thus  the  subject,  as  commonly  treated,  introduces  into 
the  Law  of  Evidence  an  attempt  to  distinguish  between 
judgments  in  rem,  and  judgments  in  personam  or  inter 
partes  (terms  adapted  from,  but  not  belonging  to,  Roman 
law,  and  never  clearly  defined  in  reference  to  our  own  or 
any  other  system) ;  also  the  question  of  the  effect  of  the 
pleas  of  autrefois  acquit,  and  autrefois  convict,  which 
clearly  belong  not  to  evidence,  but  to  criminal  procedure ; 
the  question  of  estoppels,  which  belongs  rather  to  the  law 
of  pleading  than  to  that  of  evidence;  and  the  question  of 
the  effect  given  to  the  judgments  of  foreign  Courts  of 
Justice,  which  would  seem  more  properly  to  belong  to 
private  international  law.  These  and  other  matters  are 
treated  of  at  great  length  in  2  Ph.  Ev.  1-78,  and  T.  E.  ss. 
1480-1534,  and  in  the  note  to  the  Duchess  of  Kingston's 
Case  in  2  S.  L.  C.  777-880.  Best  (ss.  588-595)  treats  the 
matter  more  concisely. 

The  text  is  confined  to  as  complete  a  statement  as  I 
could  make  of  the  principles  which  regulate  the  relevancy 
of  judgments  considered  as  declarations  proving  the  facts 
which  they  assert,  whatever  may  be  the  effect  or  the  use 
to  be  made  of  those  facts  when  proved.  Thus  the  leading 
principle  stated  in  article  40  is  equally  true  of  all  judg- 


Notes.]  the  law  of  evidence.  175 

merits  alike.  Every  judgment,  whether  it  be  in  rem  or 
inter  partes,  must  and  does  prove  what  it  actually  effects, 
though  the  effects  of  different  sorts  of  judgments  differ  as 
widely  as  the  effects  of  different  sorts  of  deeds. 

There  has  been  much  controversy  as  to  the  extent  to 
which  effect  ought  to  be  given  to  the  judgments  of  for- 
eign Courts  in  this  country,  and  as  to  the  cases  in  which 
the  Courts  will  refuse  to  act  upon  them ;  but  as  a  mere 
question  of  evidence,  they  do  not  differ  from  English 
judgments.  The  cases  on  foreign  judgments  are  collected 
in  the  note  to  the  Duchess  of  Kingston's  Case,  2  S.  L.  C 
813-845.  There  is  a  convenient  list  of  the  cases  in  R.  N. 
P.  201-3.  The  cases  of  Godard  v.  Gray,  L.  R.  6  Q.  B. 
139,  and  Castrique  v.  Imrie,  L.  R.  4  E.  &  L  A.  414,  are 
the  latest  leading  cases  on  the  subject. 

NOTE  XXV. 

(to  Chapter  V.) 
On  evidence  of  opinions,  see  1  Ph.  Ev.  520-8;  T.  E.  ss. 
1273-1281 ;  Best,  ss.  511-17 ;  R.  N.  P.  193-4.  The  leading 
case  on  the  subject  is  Doe  v.  Tatham,  7  A.  &  E.  313 ;  and 
4  Bing.  N.  C.  489,  referred  to  above  in  Note  IX.  Baron 
Parke,  in  the  extracts  there  given,  treats  an  expression  of 
opinion  as  hearsay — that  is,  as  a  statement  affirming  the 
truth  of  the  subject-matter  of  the  opinion. 

NOTE  XXVL 
(to  Chapter  VI.) 
See  1  Ph.  502-8 ;  T.  E.  ss.  325-336 ;  Best  ss.  257-263  r 


176  A   DIGEST    OF  [NOTES. 

3  Russ.  Cr.  299-304.  The  subject  is  considered  at  length  in 
R.  v.  Rowion,  1  L.  &  C.  520.  One  consequence  of  the  view 
of  the  subject  taken  in  that  case  is  that  a  witness  may,  with 
perfect  truth,  swear  that  a  man,  who  to  his  knowledge  has 
been  a  receiver  of  stolen  goods  for  years,  has  an  excellent 
character  for  honesty,  if  he  has  had  the  good  luck  to  con- 
ceal his  crimes  from  his  neighbors.  It  is  the  essence  of 
successful  hypocrisy  to  combine  a  good  reputation  with  a 
bad  disposition,  and,  according  to  R.  v.  Rowton,  the 
reputation  is  the  important  matter.  The  case  is  seldom,  if 
ever,  acted  on  in  practice.  The  question  always  put  to  a  wit- 
ness as  to  character  is,  What  is  the  prisoner's  character 
for  honesty,  morality,  or  humanity?  as  the  case  maybe; 
nor  is  the  witness  ever  warned  that  he  is  to  confine  his 
evidence  to  the  prisoner's  reputation.  It  would  be  no 
easy  matter  to  make  the  common  run  of  witnesses  under- 
stand the  distinction. 

NOTE  xxvn. 

(to  Article  58.) 
The  list  of  matters  judicially  noticed  in  this  article  is  not 
intended  to  be  quite  complete.  It  is  compiled  from  1  Ph. 
Ev.  458-67,  and  T.  E.  ss.  4-20,  where  the  subject  is  gone 
into  more  minutely.  A  convenient  list  is  also  given  in 
R.  N.  P.  ss.  88-92,  which  is  much  to  the  same  effect.  It 
may  be  doubted  whether  an  absolutely  complete  list  could 
be  formed,  as  it  is  practically  impossible  to  enumerate 
everything  which  is  so  notorious  in  itself,  or  so  distinctly 


Notes.]  the  law  of  evidence.  177 

recorded  by  public  authority,  that  it  would  be  superfluous 
to  prove  it.  Paragraph  (1)  is  drawn  with  reference  to  the 
fusion  of  Law,  Equity,  Admiralty,  and  Testamentary 
Jurisdiction  effected  by  the  Judicature  Act. 

NOTE  XXVLTL 
(to  Article  62.) 
Owing  to  the  ambiguity  of  the  word  "evidence,  "  which 
is  sometimes  used  to  signify  the  effect  of  a  fact  when 
proved,  and  sometimes  to  signify  the  testimony  by  which 
a  fact  is  proved,  the  expression  "hearsay  is  no  evidence," 
has  many  meanings.  Its  common  and  most  important 
meaning  is  the  one  given  in  article  14,  which  might  be 
otherwise  expressed  by  saying  that  the  connection  between 
events,  and  reports  that  they  have  happened,  is  generally 
so  remote  that  it  is  expedient  to  regard  the  existence  of 
the  reports  as  irrelevant  to  the  occurrence  of  the  events,  ex- 
cept in  excepted  cases.  Article  62  expresses  the  same 
thing  from  a  different  point  of  view,  and  is  subject  to  no 
exceptions  whatever.  It  asserts  that  whatever  may  be  the 
relation  of  a  fact  to  be  proved  to  the  fact  in  issue,  it  must,  if 
proved  by  oral  evidence,  be  proved  by  direct  evidence.  For 
instance,  if  it  were  to  be  proved  under  article  31  that  A,  who 
died  50  }-ears  ago,  said  that  he  had  heard  from  his  father  B, 
who  died  100  years  ago,  that  A's  grandfather.  C  had  told  B 
that  D,  C's  elder  brother,  died  without  issue,  A's  statement 
must  be  proved  by  some  one  who,  with  his  own  ears, 
heard  him  make  it    If  (as  in  the  case  of  verbal  slander) 


178  a  digest  of  [Notes 

the  speaking  of  the  words  was  the  very  point  in  issue,  they 
must  be  proved  in  precisely  the  same  way.  Cases  in  which 
evidence  is  given  of  character  and  general  opinion,  may 
perhaps  seem  to  be  exceptions  to  this  rule,  but  they  are 
not  so.  When  a  man  swears  that  another  has  a  good  char- 
acter, he  means  that  he  has  heard  many  people,  though  he 
does  not  particularly  recollect  what  people,  speak  well  of 
him,  though  he  does  not  recollect  all  that  they  said. 


NOTE  XXIX. 
(to  Article  68.) 

For  these  rules  in  greater  detail,  see  1  Ph.  Ev.  452-3, 
and  2  Ph.  Ev.  272-289;  T.  E.  ss.  419-426;  R.  N.  P.  8  &  9. 

The  principle  of  all  the  rules  is  fully  explained  in  the 
cases  cited  in  the  footnotes,  more  particularly  in  Diuyer  v. 
Collins,  7  Ex.  639.  In  that  case  it  is  held  that  the  object 
of  notice  to  produce  is  "to  enable  the  party  to  have  the 
document  in  Court,  and  if  he  does  not,  to  enable  his  oppo- 
nent to  give  parol  evidence  ...  to  exclude  the  argu- 
ment that  the  opponent  has  not  taken  all  reasonable  means 
to  procure  the  original,  which  he  must  do  before  he  can 
be  permitted  to  make  use  of  secondary  evidence  "  (p.  647-8). 

NOTE    XXX. 
(to  Articles  69  &  70.) 
This  is  probably  the  most  ancient,  and  is,  as  far  as  it 


NOTES.J  THE   LAW   OF   EVIDENCE.  179 

extends,  the  most  inflexible  of  all  the  rules  of  evidence. 
The  following  characteristic  observations  by  Lord  Ellen- 
borough  occur  in  R.  v.  Harringwo7-th,  4  M.  &  S.  353: 

"The  rule,  therefore,  is  universal  that  you  must  first 

i 
call  the  subscribing  witness  ;  and  it  is  not  to  be  varied  in 

each  particular  case  by  trying  whether,  in  its  application, 
it  may  not  be  productive  of  some  inconvenience,  for  then 
there  would  be  no  such  thing  as  a  general  rule.  A  lawyer 
who  is  well  stored  with  these  rules  would  be  no  better  than 
any  other  man  that  is  without  them,  if  by  mere  force  of 
speculative  reasoning  it  might  be  shown  that  the  applica- 
tion of  such  and  such  a  rule  would  be  productive  of  such 
and  such  an  inconvenience,  and  therefore  ought  not  to 
prevail ;  but  if  any  general  rule  ought  to  prevail,  this  is 
certainly  one  that  is  as  fixed,  formal,  and  universal  as  any 
that  can  be  stated  in  a  Court  of  Justice." 

In  Whyvian  v.  Carth,  8  Ex.  807,  Pollock,  C.  B.,  said, 
"The  parties  are  supposed  to  have  agreed  inter  se  that  the 
deed  shall  not  be  given  in  evidence  without  his  [the  attest- 
ing witness]  being  called  to  depose  to  the  circumstances 
attending  its  execution." 

In  very  ancient  times,  when  the  jury  were  witnesses  as 
to  matter  of  fact,  the  attesting  witnesses  to  deeds  (if  a  deed 
came  in  question)  would  seem  to  have  been  summoned 
with,  and  to  have  acted  as  a  sort  of  assessors  to,  the  jury. 
See  as  to  this,  Bracton,  fo.  38a;  Fortescue  de  Laudibus, 
ch.  xxxii.  with  Selden's  note  ;  and  cases  collected  from  the 
Year-books  in  'Broke's  Abridgment,'  tit.  Testmoigne*. 


180  A   DIGEST    OF  [NOTES. 

For  the  present  rule,  and  the  exceptions  to  it,  see  1  Ph. 
Ev.  242-261;  T.  E.  ss.  1637-42;  R.  N.  P.  147-50;  Best, 
ss.  220,  &c. 

The  old  rule  which  applied  to  all  attested  documents 
was  restricted  to  those  required  to  be  attested  by  law,  by 
17  &  18  Yict.  c.  125,  s.  26,  and  28  &  29  Vict.  c.  18,  ss.  1 
&7. 

NOTE  XXXL 
(to  Article  75.) 

Mr.  Phillips  (ii.  196)  says,  that  upon  a  plea  of  nul  tiel 
record,  the  original  record  must  be  produced  if  it  is  in  the 
same  Court. 

Mr.  Taylor  (s.  1379)  says,  that  upon  prosecutions  for 
perjury  assigned  upon  any  judicial  document,  the  original 
must  be  produced.  The  authorities  given  seem  to  me 
hardly  to  bear  out  either  of  these  statements.  They  show 
that  the  production  of  the  original  in  such  cases  is  the 
usual  course,  but  not,  I  think,  that  it  is  necessary.  The 
case  of  Lady  Dartmouth  v.  Roberts,  16  Ea.  334,  is  too 
w""li  Po*  the  proposition  for  which  it  is  cited.  The  matter, 
however,  is  of  little  practical  importance. 


NOTE  XXXLL 
(to  Articles  77  &  78.) 
The  learning  as  to  exemplifications  and  ofBce-copies  will 


Notes.]  the  law  of  evidence  181 

be  found  in  the  following  authorities:  Gilbert's  'Law  of 
Evidence,'  11-20;  Buller,  Nisi  Prius.  228,  and  following; 
Starkie,  256-66  (fully  and  very  conveniently) ;  2  Ph.  Ev. 
196-200;  T.  E.  ss.  1380-4;  K.  N.  P.  112-15.  The  second 
paragraph  of  article  77  is  founded  on  Appleion  v.  Bray- 
brook,  6  M.  &  S.  39. 

As  to  exemplifications  not  under  the  Great  Seal,  it  is 
remarkable  that  the  Judicature  Acts  give  .no  seal  to  the 
Supreme  Court,  or  the  High  Court,  or  any  of  its  divisions. 

NOTE  XXXIH. 
(to  Article  90.) 
The  distinction  between  this  and  the  following  article  is, 
that  article  90  defines  the  cases  in  which  documents  are 
exclusive  evidence  of  the  transactions  which  they  embody, 
while  article  91  deals  with  the  interpretation  of  docu- 
ments by  oral  evidence.  The  two  subjects  are  so  closely 
connected  together,  that  they  are  not  usually  treated  as 
distinct,  but  they  are  so  in  fact.  A  and  B  make  a  contract 
of  marine  insurance  on  goods,  and  reduce  it  to  writing. 
They  verbally  agree  that  the  goods  are  not  to  be  shipped 
in  a  particular  ship,  though  the  contract  makes  no  such 
reservation.  They  leave  unnoticed  a  condition  usually 
understood  in  the  business  of  insurance,  and  they  make 
use  of  a  technical  expression,  the  meaning  of  which  is  not 
commonly  known.  The  law  does  not  permit  oral  evidence 
to  be  given  of  the  exception  as  to  the  particular  ship.     It 


182  a  digest  of  [Notes. 

does  permit  oral  evidence  to  be  given  to  annex  the  con- 
dition; and  thus  far  it  decides  that  for  one  purpose  the 
document  shall,  and  that  for  another  it  shall  not,  be  re- 
garded as  exclusive  evidence  of  the  terms  of  the  actual 
agreement  between  the  parties.  It  also  allows  the  tech- 
nical term  to  be  explained,  and  in  doing  so  it  interprets 
the  meaning  of  the  document  itself.  The  two  operations 
are  obviously  different,  and  their  proper  performance 
depends  upon  different  principles.  The  first  depends 
upon  the  principle  that  the  object  of  reducing  transactions 
to  a  written  form  is  to  take  security  against  bad  faith  or 
bad  memory,  for  which  reason  a  writing  is  presumed,  as  a 
general  rule,  to  embody  the  final  and  considered  determ- 
ination of  the  parties  to  it.  The  second  depends  on  a  con- 
sideration of  the  imperfections  of  language,  and  of  the 
inadequate  manner  in  which  people  adjust  their  words  to 
the  facts  to  which  they  apply. 

The  rules  themselves  are  not,  I  think,  difficult  either  to 
state,  to  understand,  or  to  remember;  but  they  are  by  no 
means  easy  to  appl}-,  inasmuch  as,  from  the  nature  of  the 
case,  an  enormous  number  of  transactions  fall  close  on  one 
side  or  the  other  of  most  of  them.  Hence  the  exposition  of 
these  rules,  and  the  abridgment  of  all  the  illustrations  of 
them  which  have  occurred  in  practice,  occupy  a  very  large 
space  in  the  different  text  writers.  They  will  be  found  in 
2  Ph.  Ev.  332^24;  T.  E.  ss.  1031-1110;  Star.  648-731; 
Best  (very  shortly  and  imperfectly),  ss.  226-229;  R.  N. 
P.  (an  immense  list  of  cases),  17-35. 


Notes.]  ihk  law  of  evidence.  183 

As  to  paragraph  (4),  which  is  founded  on  the  case  of 
Goss  v.  Lord  Nugent,  it  is  to  be  observed  that  the  para- 
graph is  purposely  so  drawn  as  not  to  touch  the  question 
of  the  effect  of  the  Statute  of  Frauds.  It  was  held  in  effect 
in  Goss  v.  Lord  Nugent,  that  if  by  reason  of  the  Statute 
of  Frauds  the  substituted  contract  could  not  be  enforced, 
it  would  not  have  the  effect  of  waiving  part  of  the  original 
contract ;  but  it  seems  the  better  opinion,  that  a  verbal 
rescission  of  a  contract  good  under  the  Statute  of  Frauds 
would  be  good.  See  Noble  v.  Ward,  L.  R.  2  Ex.  135,  and 
'Pollock  on  Contracts,'  411,  note  (6).  A  contract  by  deed 
can  be  released  only  by  deed,  and  this  case  also  would  fall 
within  the  proviso  to  paragraph  (4). 

The  cases  given  in  the  illustrations  will  be  found  to  mark 
sufficiently  the  various  rules  stated.  As  to  paragraph  (5), 
a  very  large  collection  of  cases  will  be  found  in  the  notes 
to  Wigglesworih  v.  Dallison,  1  S.  L.  C.  598-628,  but  the 
consideration  of  them  appears  to  belong  rather  to  mercan- 
tile law  than  the  Law  of  Evidence.  For  instance,  the 
question  what  stipulations  are  consistent  with,  and  what 
are  contradictory  to,  the  contract  formed  by  subscribing  a 
bill  of  exchange,  or  ihe  contract  between  an  insurer  and 
an  underwriter,  are  not  questions  of  the  Law  of  Evidence. 


NOTE  xxxrv. 
(to  Article  91.) 
Perhaps  the  subject-matter  of  this  article  does  not  fall 


184  A   DIGEST   OF  [NoTES. 

strictly  within  the  Law  of  Evidence,  but  it  is  generally 
considered  to  do  so ;  and  as  it  has  always  been  treated  as  a 
branch  of  the  subject,  I  have  thought  it  best  to  deal  with  it. 

The  general  authorities  for  the  propositions  in  the  text 
are  the  same  as  those  specified  in  the  last  note ;  but  the 
great  authority  on  the  subject  is  the  work  of  Vice-Chan- 
cellor Wigram  on  Extrinsic  Evidence.  Article  91,  indeed, 
will  be  found,  on  examination,  to  differ  from  the  six  propo- 
sitions of  Vice-Chancellor  Wigram  only  in  its  arrangement 
and  form  of  expression,  and  in  the  fact  that  it  is  not  restricted 
to  wills.  It  will,  I  think,  be  found,  on  examination,  that 
every  case  cited  by  the  Vice-Chancellor  might  be  used  as 
an  illustration  of  one  or  the  other  of  the  propositions  con- 
tained in  it. 

It  is  difficult  to  justify  the  line  drawn  between  the  rule 
as  to  cases  in  which  evidence  of  expressions  of  intention  is 
admitted  and  cases  in  which  it  is  rejected  (paragraph  7, 
illustrations  (k),  (I),  and  paragraph  8,  illustration  (m)). 
When  placed  side  by  side,  such  cases  as  Doe  v.  Hiscocks 
(illustration  (k) )  and  Doe  v.  Needs  (illustration  (m) )  pro- 
duce a  singular  effect.  The  vagueness  of  the  distinction 
between  them  is  indicated  by  the  case  of  Charter  v.  Charter, 
L.  R.  2  P.  &  D.  315.  In  this  case  the  testator  Forster 
Charter  appointed  " my  son  Forster  Charter"  his  execu- 
tor. He  had  two  sons,  William  Forster  Charter  and 
Charles  Charter,  and  many  circumstances  pointed  to  the 
conclusion  that  the  person  whom  the  testator  wished  to  be 
his   executor  was    Charles   Charter.     Lord  Penzance  not 


Notes.]  the  law  of  evidence.  185 

only  admitted  evidence  of  all  the  circumstances  of  the  case, 
but  expressed  an  opinion  (p.  319)  that,  if  it  were  necessary, 
evidence  of  declarations  of  intention  might  be  admitted 
under  the  rule  laid  down  by  Lord  Abinger  in  Hiscocks  v. 
Hiscocks,  because  part  of  the  language  employed  ("my 

son Charter")  applied  correctly  to  each  son,  and  the 

remainder,  "Forster,"  to  neither.  This  mode  of  con- 
struing the  rule  would  admit  evidence  of  declarations  of 
intention  both  in  cases  falling  under  paragraph  8,  and 
in  cases  falling  under  paragraph  7,  which  is  inconsist 
ent  not  only  with  the  reasoning  in  the  judgment,  but 
with  the  actual  decision  in  Doe  v.  Hiscocks.  It  is  also 
inconsistent  with  the  principles  of  the  judgment  in  the 
later  case  of  Allgood  v.  Blake,  L.  K.  8  Ex.  160,  where  the 
rule  is  stated  by  Blackburn,  J.,  as  follows :  "In  construing 
a  will,  the  Court  is  entitled  to  put  itself  in  the  position  of 
the  testator,  and  to  consider  all  material  facts  and  circum- 
stances known  to  the  testator  with  reference  to  which  he 
is  to  be  taken  to  have  used  the  words  in  the  will,  and  then 
to  declare  what  is  the  intention  evidenced  by  the  words 
used  with  reference  to  those  facts  and  circumstances  which 
were  (or  ought  to  have  been)  in  the  mind  of  the  testator 
when  he  used  those  words."  After  quoting  Wigram  on 
Extrinsic  Evidence,  and  Doe  v.  Hiscocks,  he  adds:  "No 
doubt,  in  many  cases,  the  testator  has,  for  the  moment,  for- 
gotten or  overlooked  the  material  facts  and  circumstances 
which  he  well  knew.  And  the  consequence  sometimes  is 
that  he  uses  words  which  express  an  intention  which  he 


186  A.  DIGEST   OF  [NOTES. 

would  not  have  wished  to  express,  and  would  have  altered 
if  he  had  been  reminded  of  the  facts  and  circumstances. 
But  the  Court  is  to  construe  the  will  as  made  bjr  the  test- 
ator, not  to  make  a  will  for  him ;  and  therefore  it  is  hound 
to  execute  his  expressed  intention,  even  if  there  is  great 
reason  to  believe  that  he  has  by  blunder  expressed  what 
he  did  not  mean."  The  part  of  Lord  Penzance's  judg- 
ment above  referred  to  was  unanimously  overruled  in  the 
House  of  Lords;  though  the  Court,  being  equally  divided 
as  to  the  construction  of  the  will,  refused  to  reverse  the 
judgment,  upon  the  principle  "  prcesumitur  pro  negante." 
Conclusive  as  the  authorities  upon  the  subject  are,  it 
may  not,  perhaps,  be  presumptuous  to  express  a  doubt 
whether  the  conflict  between  a  natural  wish  to  fulfill  the 
intention  which  the  testator  would  have  formed  if  he  had 
recollected  all  the  circumstances  of  the  case ;  the  wish  to 
avoid  the  evil  of  permitting  written  instruments  to  be 
varied  by  oral  evidence  ;  and  the  wish  to  give  effect  to  wills, 
has  not  produced  in  practice  an  illogical  compromise.  The 
strictly  logical  course,  I  think,  would  be  either  to  admit 
declarations  of  intention  both  in  cases  falling  under  para- 
graph 7,  and  in  cases  falling  under  paragraph  8,  or  to  ex- 
clude such  evidence  in  both  classes  of  cases,  and  to  hold 
void  for  uncertainty  every  bequest  or  devise  which  was 
shown  to  be  uncertain  in  its  application  to  facts.  Such  a 
decision  as  that  in  Springer  v.  Gardiner,  the  result  of  which 
was  to  give  a  legacy  to  a  person  whom  the  testator  had  no 
wish  to  benefit,  and  who  was  not  either  named  or  described 


Notes.]  the  law  of  evidence.  187 

in  his  will,  appears  to  me  be  a  practical  refutation  of  the 
principle  or  rule  on  which  it  is  based. 

Of  course,  every  document,  whatever,  must  to  some  ex- 
tent be  interpreted  by  surrounding  circumstances.  How- 
ever accurate  and  detailed  a  description  of  things  and  per- 
sons may  be,  oral  evidence  is  always  wanted  to  show  that 
persons  and  things  answering  the  description  exist;  and, 
therefore,  in  every  case  whatever,  every  fact  must  be 
allowed  to  be  proved  to  which  the  document  does,  or 
probably  may,  refer;  but  if  more  evidence  than  this  is 
admitted,  if  the  Court  may  look  at  circumstances  which 
affect  the  probability  that  the  testator  would  form  this  in- 
tention or  that,  why  should  declarations  of  intention  be 
excluded  ?  If  the  question  is,  "What  did  the  testator  say  ?" 
why  should  the  Court  look  at  the  circumstances  that  he 
lived  with  Charles,  and  was  on  bad  terms  with  William? 
How  can  any  amount  of  evidence  to  show  that  the  testator 
intended  to  write  "Charles,"  show  that  what  he  did  write 
means  "Charles  ?"  To  say  that  "Forster"  means  "Charles," 
is  like  saying  that  "two  "  means  "three."  If  the  question 
is.  "What  did  the  testator  wish?"  why  should  the  Court 
refuse  to  look  at  his  declarations  of  intention  ?  And  what 
third  question  can  be  asked  ?  The  only  one  which  can  be 
suggested  is,  "What  would  the  testator  have  meant  if  he 
had  deliberately  used  unmeaning  words  ?  "  The  only  an- 
swer to  this  would  be,  he  would  have  had  no  meaning,  and 
would  have  said  nothing,  and  his  bequest  should  be  pro 
ianto  void. 


188  A   DIGEST    OF  [NOTES. 

NOTE  XXX^V. 
(to  Article  92.) 
See  2  Ph.  Ev.  364;  Star.  726;  T.  E.  (from  Greenleaf,)  s. 
1051.  Various  cases  are  quoted  by  these  writers  in  support 
of  the  first  part  of  the  proposition  in  the  article ;  but  R.  v. 
Ckeadle  is  the  only  one  which  appears  to  me  to  come  quite 
up  to  it.  They  are  all  settlement  cases.  The  latter  part 
of  the  article  rests,  so  far  as  I  know,  on  no  authority  ;  but 
it  must,  I  think,  be  law.  It  cannot  be  doubted,  for  instance, 
that  if  a  contract  in  writing,  as  it  stood,  supplied  a  motive 
for  an  alleged  crime,  a  party  to  it,  accused  of  that  crime, 
might  show  that  a  verbal  agreement  had  been  incorporated 
with  it  which  would  remove  the  motive,  and  which  was 
intended  to  be  carried  out,  though  not  legally  binding. 


NOTE  XXXVL 
(to  Part  HI.) 

In  this  and  the  following  chapter  many  matters  usually 
introduced  into  treatises  on  evidence  are  omitted,  because 
they  appear  to  belong  either  to  the  subject  of  pleading, 
or  to  different  branches  of  Substantive  Law.  For  instance, 
the  rules  as  to  the  burden  of  proof  of  negative  averments 
in  criminal  cases  (1  Ph.  Ev.  555,  &c;  3  Russ.  on  Cr. 
276-9,)  belong  rather  to  criminal  procedure  than  to  evi- 
dence.   Again,  in  every  branch  of  Substantive  Law  there 


Notes.]  the  law  of  evidence.  189 

are  presumptions,  more  or  less  numerous  and  important, 
which  can  be  understood  only  in  connection  with  those 
branches  of  the  law.  Such  are  the  presumptions  as  to  the 
ownership  of  property,  as  to  consideration  for  a  bill  of 
exchange,  as  to  many  of  the  incidents  of  the  contract  of 
insurance.  Passing  over  all  these,  I  have  embodied  in 
Chapter  XIV.  those  presumptions  only  which  bear  upon 
the  proof  of  facts  likely  to  be  proved  on  a  great  variety  of 
different  occasions,  and  those  estoppels  only  which  arise 
out  of  matters  of  fact,  as  distinguished,  from  those  which 
arise  upon  deeds  or  judgments. 


NOTE  XXXVIL 

(to  Article  94.) 
The  presumption  of  innocence  belongs  principally  to  the 
Criminal  Law,  though  it  has,  as  the  illustrations  show,  a 
bearing  on  the  proof  of  ordinary  facts.  The  question, 
"What  doubts  are  reasonable  in  criminal  cases?"  belongs 
to  the  Criminal  Law. 


NOTE  XXXVLLL 

(to  Article  101.) 

The  first  part  of  this  article  is  meant  to  give  the  effect 

of  the  presumption,  omnia  esse  rite  acta,  1  Ph.  Ev.  480, 

&c:  T.  E.  ss.  124,  &c;  Best,  s.  353,  &c     This,  like  all 


190  A   DIGEST   OF  [NOTES. 

presumptions,  is  a  very  vague  and  fluid  rule  at  best,  and  is 
applied  to  a  great  variety  of  different  subject  matters. 


NOTE  XXXIX. 
(to  Articles  102-105.) 

These  articles  embody  the  principal  cases  of  estoppels  in 
pais,  as  distinguished  from  estoppels  by  deed  and  by  record. 
As  they  may  be  applied  in  a  great  variety  of  ways  and  to 
infinitely  various  circumstances,  the  application  of  these 
rules  has  involved  a  good  deal  of  detail.  The  rules  them- 
selves appear  clearly  enough  on  a  careful  examination  of 
the  cases.  The  latest  and  most  extensive  collection  of 
cases  is  to  be  seen  in  2  S.  L.  C.  851-880,  where  the  cases 
referred  to  in  the  text  and  many  others  are  abstracted. 
See,  too,  1  Ph.  Ev.  350-3;  T.  E.  ss.  88-90,  776,  778;  Best, 
s.  543. 

Article  102  contains  the  rule  in  Pickard  v.  Sears,  6  A. 
&  E.  474,.  as  interpreted  and  limited  by  Parke,  B.,  in 
Freeman  v.  Cooke,  6  Bing.  174,  179.  The  second  para- 
graph of  the  article  is  founded  on  the  application  of  this 
rule  to  the  case  of  a  negligent  act  causing  fraud.  The 
rule,  as  expressed,  is  collected  from  a  comparison  of  the 
following  cases:  Bank  of  Ireland  v.  Evans,  5  H.  L.  389; 
Swan  v.  British  and  Australasian  Company,  which  was 
before  three  Courts,  see  7  C.  B.  (N.  S.)  448 ;  7  H.  &  N.  603 ; 
2  H.  &  C.  175,  where  the  judgment  of  the  majority  of  the 
Court  of  Exchequer  was  reversed  ;  and  Halifax  Guardians 


Notes.]  the  law  of  evidence.  191 

v.  Wheelwright,  L.  R.  10  Ex.  183,  in  which  all  the  cases 
are  referred  to.  All  of  these  refer  to  Young  v.  Grote,  4 
Bing.  253,  and  its  authority  has  always  been  upheld, 
though  not  always  on  the  same  ground.  The  rules  on  this 
subject  are  stated  in  general  terms  in  Carr  v.  L.  $  N.  W. 
Railway,  L.  R.  10  C.  P.  316-17. 

It  would  be  difficult  to  find  a  better  illustration  of  the 
gradual  way  in  which  the  judges  construct  rules  of  evi- 
dence, as  circumstances  require  it,  than  is  afforded  by  a 
study  of  these  cases. 


NOTE  XL. 
(to  Chapter  XV.) 
The  law  as  to  the  competency  of  witnesses  was  formerly 
the  most,  or  nearly  the  most,  important  and  extensive 
branch  of  the  Law  of  Evidence.  Indeed,  rules  as  to  the 
incompetency  of  witnesses,  as  to  the  proof  of  documents, 
and  as  to  the  proof  of  some  particular  issues,  are  nearly 
the  only  rules  of  evidence  treated  of  in  the  older  author- 
ities. A  great  part  of  Bentham's  'Rationale  of  Judicial 
Evidence  '  is  directed  to  an  exposure  of  the  fundamentally 
erroneous  nature  of  the  theory  upon  which  these  rules 
were  founded ;  and  his  attack  upon  them  has  met  with  a 
success  so  nearly  complete  that  it  has  itself  become  obso- 
lete. The  history  of  the  subject  is  to  be  found  in  Mr. 
Best's  work,  book  i.  part  i.  ch.  ii.  ss.  132-188.     See,  too. 


192  A  DIGEST    OF  [NOTES. 

T.  E.  ss.  1210-57,  and  R.  N.  P.  177-81.    As  to  the  old  law, 
see  1  Ph.  Ev.  1-104. 

NOTE  XLI. 
(to  Article  107.) 
The  authorities  for  the  first  paragraph  are  given  at  great 
length  in  Best,  ss.  146-165.  See,  too,  T.  E.  s.  1240.  As 
to  paragraph  2,  see  Best,  s.  148;  1  Ph.  Ev.  7;  2  Ph.  Ev. 
457;  T.  E.  s.  1241.  The  concluding  words  of  the  last 
paragraph  are  framed  with  reference  to  the  alteration  in 
the  law  as  to  the  competency  of  witnesses  made  by  32  &  33 
Vict.  c.  68,  s.  4.  The  practice  of  insisting  on  a  child's 
belief  in  punishment  in  a  future  state  for  lying  as  a  con- 
dition of  the  admissibility  of  its  evidence,  leads  to  anec- 
dotes and  to  scenes  little  calculated  to  increase  respect 
either  for  religion  or  for  the  administration  of  justice. 
The  statute  referred  to  would  seem  to  render  this  unneces- 
sary. If  a  person  who  deliberately  and  advisedly  rejects 
all  belief  in  God  and  a  future  state  is  a  competent  witness, 
&  fortiori,  a  child  who  has  received  no  instructions  on  the 
subject  must  be  competent  also. 

NOTE  XLLL 
(to  Article  108.) 
At  Common  Law  the  parties  and  their  husbands  and 
wives  were  incompetent  in  all  cases.     This  incompetency 
was  removed  as  to  the  parties  in  civil,  but  not  in  criminal 


Notes.]  the  law  of  evide>.*ce.  193 

cases,  by  14  &  15  Vict.  c.  99,  s.  2;  and  as  to  their  husbands 
and  wives,  by  16  &  17  Vict.  c.  83,  ss.  1,  2.  But  sec.  2 
expressly  reserved  the  Common  Law  as  to  criminal  cases 
and  proceedings  instituted  in  consequence  of  adultery. 

The  words  relating  to  adultery  were  repealed  by  32  &  33 
Vict.  c.  68,  s.  3,  which  is  the  authority  for  the  next  article. 

Persons  interested  and  persons  who  had  been  convicted 
of  certain  crimes  were  also  incompetent  witnesses,  but 
their  incompetency  was  removed  by  6  &  7  Vict.  c.  85. 

The  text  thus  represents  the  effect  of  the  Common  Law 
as  varied  by  four  distinct  statutory  enactments. 

By  5  &  6  Will.  IV.  c.  50,  s.  100,  inhabitants,  &c,  were 
made  competent  to  give  evidence  in  prosecutions  of  par- 
ishes for  non-repair  of  highways,  and  this  was  extended  to 
some  other  cases  by  3  &  4  Vict.  c.  26.  These  enactments, 
however,  have  been  repealed  by  37  &  38  Vict.  c.  35,  and 
c.  96  (the  Statute  Law  Kevision  Acts,  1874)  respectively. 
Probably  this  was  done  under  the  impression  that  the 
enactments  were  rendered  obsolete  by  14  and  15  Vict.  c. 
99,  s.  2,  which  made  parties  admissible  witnesses.  A  ques- 
tion might  be  raised  upon  the  effect  of  this,  as  sec.  3 
expressly  excepts  criminal  proceedings,  and  a  prosecution 
for  a  nuisance  is  such  a  proceeding.  The  result  would 
seem  to  be,  that  in  cases  as  to  the  repair  of  highways, 
bridges,  &c,  inhabitants  and  overseers  are  incompetent, 
unless,  indeed,  the  Courts  should  hold  that  they  are  sub- 
stantially civil  proceedings,  as  to  which  see  R.  v.  Russell, 
3  E.  &  B.  942. 

If 


194  A   DIGEST   OF  [NOTES. 

NOTE  XLILL 
(to  Article  111.) 

The  en  sea  on  which  these  articles  are  founded  are  only 
Nisi  Prius  decisions  ;  but  as  they  are  quoted  by  writers  of 
eminence  (1  Ph.  Ev.139;  T.  E.  s.  859),  I  have  referred  to 
them. 

In  the  trial  of  Lord  Thanet,  for  an  attempt  to  rescue 
Arthur  O'Connor,  Serjeant  Shepherd,  one  of  the  special 
commissioners,  before  whom  the  riot  took  place  in  court 
at  Maidstone,  gave  evidence.  R.  v.  Lord  Thanet,  27  S 
T.  836. 

I  have  myself  been  called  as  a  witness  on  a  trial  for  per- 
j-iry  to  prove  what  was  said  before  me  when  sitting  as  an 
arbitrator.  The  trial  took  place  before  Mr.  Justice  PJayes 
at  York,  in  1869. 

As  to  the  case  of  an  advocate  giving  evidence  in  the 
course  of  a  trial  in  which  he  is  professionally  engaged,  see 
several  cases  cited  and  discussed  in  Best,  ss.  184-6. 

In  addition  to  those  cases,  reference  may  be  made  to  the 
trial  of  Home  Tooke  for  a  libel  in  1777,  when  he  proposed 
to  call  the  Attorney-General  (Lord  Thurlow),  20  S.  T.  740. 
These  cases  do  not  appear  to  show  more  than  that,  as  a 
rule,  it  is  for  obvious  reasons  improper  that  those  who 
conduct  a  case  as  advocates  should  be  called  as  witnesses 
in  it.  Cases,  however,  might  occur  in  which  it  might  be 
absolutely  necessary  to  do  so.    For  instance,   a  solicitor 


Notes.]  the  law  of  evidence.  195 

engaged  as  an  advocate  might,  not  at  all  improbably,  be 
the  attesting  witness  to  a  deed  or  wilL 


NOTE  XLIV. 
(to  Article  115.) 
This  article  sums  up  the  rule  as  to  professional  commu- 
nications, every  part  of  which  is  explained  at  great  length, 
and  to  much  the  same  effect  in  1  Ph.  Ev.  105-122 ;  T.  E. 
ss.  832-9 ;  Best,  s.  581.  It  is  so  well  established  and  so 
plain  in  itself  that  it  requires  only  negative  illustrations. 
It  is  stated  at  length  by  Lord  Brougham  in  Greenough  v. 
Gaskell,  1M.&K  98. 

NOTE  XLV. 
(to  Article  117.) 
The  question  whether  clergymen,  and  particularly 
whether  Roman  Catholic  priests,  can  be  compelled  to  dis- 
close confessions  made  to  them  professionally  has  never 
been  solemnly  decided  in  England,  though  it  is  stated  by 
the  text  writers  that  they  can.  See  1  Ph.  Ev.  109 ;  T.  E. 
ss.  837-8;  E.  N.  P.  190;  Starkie,  40.  The  question  is  dis- 
cussed at  some  length  in  Best,  ss.  583-4 ;  and  a  pamphlet 
was  written  to  maintain  the  existence  of  the  privilege  by 
Mr.  Baddeley,  in  1865.  >Ir.  Best  shows  clearly  that  none 
of  the  decided  cases  are  directly  in  point,  except  Butler  v. 
Moore  (MacNally,  253-4),   and  possibly  R.  v.   Sparkcs, 


196  A   DIGEST    OF  [NoTKS. 

which  was  cited  by  Garrow,  in  arguing  DuBarre  v.  Livctle, 
before  Lord  Kenyon  (1  Pea.  108).  The  report  of  his  m- 
gument  is  in  these  words :  "The  prisoner  being  a  Pnpfot, 
had  made  a  confession  before  a  Protestant  clergyman  el 
the  crime  for  which  he  was  indicted;  and  that  confession 
was  permitted  to  be  given  in  evidence  on  the  trial"  (be- 
fore Buller,  J.),  "and  he  was  convicted  and  "executed." 
The  report  is  of  no  value,  resting  as  it  does  on  Peake's 
note  of  Garrow' s  statement  of  a  case  in  which  he  was 
probably  not  personally  concerned;  and  it  does  not  appear 
how  the  objection  was  taken,  or  whether  the  matter  was 
ever  argued.  Lord  Kenyon,  however,  is  said  to  have 
observed :  "  I  should  have  paused  before  I  admitted  the 
evidence  there  admitted." 

Mr.  Baddele\-'s  argument  is  in  a  few  words,  that  the 
privilege  must  have  been  recognized  when  the  Roman 
Catholic  religion  was  established  by  law,  and  that  it  has 
never  been  taken  away. 

I  think  that  the  modern  Law  of  Evidence  is  not  so  old 
as  the  Reformation,  but  has  grown  up  by  the  practice 
of  the  Courts,  and  by  decisions  in  the  course  of  the  last 
two  centuries.  It  came  into  existence  at  a  time  when  ex- 
ceptions in  favor  of  auricular  confessions  to  Roman  Cath- 
olic priests  were  not  likely  to  be  made.  The  general  rule 
is  that  every  person  must  testify  to  what  he  knows.  An 
exception  to  the  general  rule  has  been  established  in  regard 
to  legal  advisers,  but  there  is  nothing  to  show  that  it 
extends  to  clergymen,  and  it  is  usually  so  stated  as  not  to 


Notes.]  the  law  of  evidence.  197 

include  them.  This  is  the  ground  on  which  the  Irish  Mas- 
ter of  the  Rolls  (Sir  Michael  Smith)  decided  the  case  of 
Butler  v.  Moore,  in  1802  (MacNally,  Ev.  253-4).  It  was  a 
demurrer  to  a  rule  to  administer  interrogatories  to  a  Roman 
Catholic  priest  as  to  matter  which  he  said  he  knew,  if  at 
all.  professionally  only.  The  Judge  said,  "It  was  the 
undoubte  I  legal  constitutional  right  of  every  subject  of 
the  realm  who  has  a  cause  depending,  to  call  upon  a  fel- 
low-subject to  testify  what  he  may  know  of  the  matters  in 
issue;  and  every  man  is  bound  to  make  the  discovery, 
unless  specially  exempted  and  protected  by  law.  It  was 
candidly  admitted,  that  no  special  exemption  could  be 
shown  in  the  present  instance,  and  analogous  cases  and 
principles  alone  were  relied  upon."  The  analogy,  how- 
ever, was  not  considered  sufficiently  strong. 

Several  judges  have,  for  obvious  reasons,  expressed  the 
strongest  disinclination  to  compel  such  a  disclosure.  Thus 
Best,  C.  J.,  said,  "I,  for  one,  will  never  compel  a  clergy- 
man to  disclose  communications  made  to  him  by  a  prisoner; 
but  if  he  chooses  to  disclose  them  I  shall  receive  them  in 
evidence"  {obiter,  in  Broad  v.  Pitt,  3  C.  &  P.  518).  Alder- 
son,  B.,  thought  (rather  it  would  seem  as  a  matter  of  good 
feeling  than  as  a  matter  of  positive  law)  that  such  evidence 
should  not  be  given.     R.  v.  Griffin,  6  Cox,  Cr.  Ca.  219. 

NOTE  XLVL 

(to  Articles  126,  127,  128.) 
These  articles  relate  to  matters  almost  too  familiar  to 


198  A   DIGEST    OF  [NOTES. 

require  authority,  as  no  one  can  watch  the  proceedings  in 
any  Court  of  Justice  without  seeing  the  rules  laid  down  in 
them  continually  enforced.  The  suhject  is  discussed  at 
length  in  2  Ph.  Ev.  pt.  2,  chap.  x.  p.  456,  &c. ;  T.  E.  s. 
1258,  &c;  see,  too,  Best,  s.  631,  &c.  In  respect  to  leading 
questions,  it  is  said,  "  It  is  entirely  a  question  for  the  pre- 
siding judge  whether  or  not  the  examination  is  being  con- 
ducted fairly."     L.R.  N.P.  182. 


NOTE  XLVLL 
(to  Article  129.) 
This  article  states  what  is  now  the  well-established  prac- 
tice of  the  Courts,  and  it  never  was  more  strikingly  illus- 
trated than  in  the  case  referred  to  in  the  illustration.  But 
the  practice  which  it  represents  is  modern ;  and  it  may 
perhaps  be  doubted  whether,  upon  solemn  argument,  it 
would  be  held  that  a  person  who  is  called  to  prove  a  minor 
fact,  not  really  disputed,  in  a  case  of  little  importance, 
thereby  exposes  himself  to  having  every  transaction  of  his 
past  life,  however  private,  inquired  into  by  persons  who 
may  wish  to  serve  the  basest  purposes  of  fraud  or  revenge 
by  doing  so.  Suppose,  for  instance,  a  medical  man  were 
called  to  prove  the  fact  that  a  slight  wound  had  been  in- 
flicted, and  been  attended  to  by  him,  would  it  be  lawful, 
under  pretence  of  testing  his  credit,  to  compel  him  to 
answer  upon  oath  a  series  of  questions  as  to  his  private 
affairs,  extending  over  many  years,  and  tending  to  expose 


Notes.]  the  law  oe  evidence.  199 

transactions  of  the  most  delicate  and  secret  kind,  in  which 
the  fortune  and  character  of  other  persons  might  be  in- 
volved? If  this  is  the  law,  it  should  be  altered.  The 
following  section  of  the  Indian  Evidence  Act  (1  of  1872) 
may  perhaps  be  deserving  of  consideration.  After  author- 
izing, in  sec.  117,  questions  as  to  the  credit  of  the  witness, 
the  Act  proceeds  as  folluws  in  sec.  148 : — 

"If  any  such  question  relates  to  a  matter  not  relevant 
to  the  suit  or  proceeding,  except  in  so  far  as  it  affects  the 
credit  of  the  witness  by  injuring  his  character,  the  Court 
shall  decide  whether  or  not  the  witness  shall  be  compelled 
to  answer  it,  and  may,  it  it  thinks  fit,  warn  the  witness 
that  he  is  not  obliged  to  answer  it.  In  exercising  this 
discretion,  the  Court  shall  have  regard  to  the  following 
considerations: — 

"(1)  Such  questions  are  proper  if  they  are  of  such  a 
nature  that  the  truth  of  the  imputation  conveyed  by  them 
would  seriously  affect  the  opinion  of  the  Court  as  to  the 
credibility  of  the  witness  on  the  matter  to  which  he 
testifies. 

"(2)  Such  questions  are  improper  if  the  imputation 
which  they  convey  relates  to  matters  so  remote  in  time, 
or  of  such  a  character,  that  the  truth  of  the  imputation 
would  not  affect,  or  would  affect  in  a  slight  degree,  the 
opinion  of  the  Court  as  to  the  credibility  of  the  witness 
on  the  matter  to  which  he  testifies. 

"(3)  Such  questions  are  improper  if  there  is  a  great 
disproportion  between  the  importance  of  the  imputation 


200  A   DIGEST   OF  [NOTES. 

made  against  the  witness's  character  and  the  importance 
of  his  evidence." 


NOTE  XLVLLL 
(to  Article  131.) 

The  words  of  the  two  sections  of  17  &  18  Vict.  c.  125, 
meant  to  be  represented  by  this  article  are  as  follows : — 

"  22.  A  party  producing  a  witness  shall  not  be  allowed  to 
impeach  his  credit  by  general  evidence  of  bad  character; 
but  he  may,  in  case  the  witness  shall,  in  the  opinion  of  the 
judge,  prove  adverse,  contradict  him  by  other  evidence, 
or,  by  leave  of  the  judge,  prove  that  he  has  made  at  other 
times  a  statement  inconsistent  with  his  present  testimony; 
but  before  such  last-mentioned  proof  can  be  given,  the 
circumstances  of  the  supposed  statement,  sufficient  to 
designate  the  particular  occasion,  must  be  mentioned  to 
the  witness,  and  he  must  be  asked  whether  or  not  he  has 
made  such  statement. 

"23.  If  a  witness,  upon  cross-examination  as  to  a  former 
statement  made  by  him  relative  to  the  subject  matter  of 
the  cause,  and  inconsistent  with  his  present  testimony, 
does  not  distinctly  admit  that  he  made  such  statement,  proof 
may  be  given  that  he  did  in  fact  make  it ;  but  before  such 
proof  can  be  given,  the  circumstances  of  the  supposed  state- 
ment, sufficient  to  designate  the  particular  occasion,  must  be 
mentioned  to  the  witness,  and  he  must  be  asked  whether 
or  not  he  has  made  such  statement." 


Notes.]  the  law  of  evidence.  201 

The  sections  are  obviously  ill-arranged ;  but  apart  from 
this,  s.  22  is  so  worded  as  to  suggest  a  doubt  whether  a 
party  to  an  action  has  a  right  to  contradict  a  witness  called 
by  himself  whose  testimony  is  adverse  to  his  interests. 
The  words  "he  may,  in  case  the  witness  shall,  in  the 
opinion  of  the  judge,  prove  adverse,  contradict  him  by 
>ther  evidence,"  suggest  that  he  cannot  do  so  unless  the 
adge  is  of  that  opinion.  This  is  not,  and  never  was,  the 
aw.  In  Greenough  v.  Eccles,  5  C.  B.  (N.  S.),  p.  802,  Wil- 
liams, J.,  says:  "The  law  was  clear  that  you  might  not 
discredit  your  own  witness  by  general  evidence  of  bad 
character;  but  you  might,  nevertheless,  contradict  him  by 
other  evidence  relevant  to  the  issue;"  and  he  adds  (p. 
803):  "It  is  impossible  to  suppose  that  the  Legislature 
could  have  really  intended  to  impose  any  fetter  whatever 
on  the  right  of  a  party  to  contradict  his  own  witness  by 
other  evidence  relevant  to  the  issue — a  right  not  only 
established  by  authority,  but  founded  on  the  plainest  good 
sense." 

Lord  Chief  Justice  Cockburn  said  of  the  22nd  section : 
"There  has  been  a  great  blunder  in  the  drawing  of  it,  and 
on  the  part  of  those  who  adopted  it."  .  .  .  "Perhaps 
the  better  course  is  to  consider  the  second  branch  of  the 
section  as  altogether  superfluous  and  useless"  (p.  806). 
On  this  authority  I  have  omitted  it. 

For  many  years  before  the  Common  Law  Procedure 
Act  of  1854,  it  was  held,  in  accordance  with  Queen  Caro- 
line's case  (2  Br.  &  Bing.  28<i-291).  that  a  witness  could 


202  A   DIGEST   OF  [NOT£S 

not  be  cross-examined  as  to  statements  made  in  writing, 
unless  the  writing  had  been  first  proved.  The  effect  of 
this  rule  in  criminal  cases  was,  that  a  witness  could  not  be 
cross-examined  as  to  what  he  had  said  before  the  magis- 
trates without  putting  in  his  deposition,  and  this  gave  the 
prosecuting  counsel  the  reply.  Upon  this  subject  rules  of 
practice  were  issued  by  the  judges  in  1837,  when  the  Pris- 
oner's Counsel  Act  came  into  operation.  The  rules  are 
published  in  7  C.  &  P.  676.  They  would  appear  to  have 
been  superseded  by  the  28  Vict.  c.  18. 


NOTE  XLIX 

The  Statute  Law  relating  to  the  subject  of  evidence  may 
be  regarded  either  as  voluminous  or  not,  according  to  the 
view  taken  of  the  extent  of  the  subject. 

The  number  of  statutes  classified  under  the  head  "Evi- 
dence "  in  Chitty's  '  Statutes '  is  35.  The  number  referred 
to  under  that  head,  in  the  Index  to  the  'Revised  Statutes,' 
is  39.  Many  of  these,  however,  relate  only  to  the  proof  of 
particular  documents,  or  matters  of  fact  which  may  become 
material  under  special  circumstances. 

Of  these  I  have  noticed  a  few  which,  for  various  reasons, 
appeared  important.  Such  are  :  34  &  35  Vict.  c.  112,  s.  19 
(see  article  11) ;  9  Geo.  IV.  c.  14,  s.  I,  amended  by  19  &  20 
Vict  c.  97,  s.  13  (see  article  17);  9  Geo.  IV.  c.  14,  s.  3; 
3  &  4  Will.  IV.  c.  42  (see  article  28) ;  11  &  12  Vict.  c.  42, 
s.  17  (article  33);  30  &  31  Vict.  c.  35,  s.  6  (article  34);  7 


Notes.]  the  law  of  evidence.  203 

James  I.  c.  12  (article  38) ;  7  &  8  Geo.  IV.  c.  28,  s.  11, 
amended  by  6  &  7  Will.  IV.  c.  Ill ;  24  &  25  Vict.  c.  96,  s. 
116 ;  24  &  25  Vict  c.  90,  s.  37  (see  article  56) ;  8  &  9  Vict, 
c.  10,  s.  6 ;  35  &  36  Vict.  c.  6,  s.  4  (article  121) ;  7  &  8  Will. 
ID.  c.  3,  ss.  2-4;  39  &  40  Geo.  IH.  c.  93  (article  122). 

Many,  again,  refer  to  pleading  and  practice  rather  than 
evidence,  in  the  sense  in  which  I  employ  the  word.  Such 
are  the  Acts  which  enable  evidence  to  be  taken  on  com- 
mission if  a  witness  is  abroad,  or  relate  to  the  administra- 
tion of  interrogatories. 

Those  which  relate  directly  to  the  subject  of  evidence, 
as  defined  in  the  Introduction,  are  the  ten  following  Acts : 

1. 

46  Geo.  III.  c.  37  (1  section;  see  article  120).  This  Act 
qualifies  the  rule  that  a  witness  is  not  bound  to  answer 
questions  which  criminate  himself,  by  declaring  that  he  is 
not  excused  from  answering  questions  which  fix  him  with 
a  civil  liability. 

2. 

6  &  7  Vict.  c.  85.  This  Act  abolishes  incompetency 
from  interest  or  crime  (4  sections;  see  article  106). 

3. 

8  &  9  Vict.  c.  113:  "An  Act  to  facilitate  the  admission 
of  evidence  of  certain  official  and  other  documents"  (8th 
August,  1845 ;  7  sections) : — 

S.  1,  after  preamble  reciting  that  many  documents  are, 
by  various  Acts,  rendered  admissible  in  proof  of  certain 


204  A   DIGEST    OF  [NOTES. 

particulars  if  authenticated  in  a  certain  way,  enacts  inter 
alia  that  proof  that  the}-  were  so  authenticated  shall  not 
be  required  if  they  purport  to  be  so  authenticated.  (Ar- 
ticle 79.) 

S.  2.  Judicial  notice  to  be  taken  of  signatures  of  certaio 
judges.     (Article  58,  latter  part  of  clause  8.) 

S.  3.  Certain  Acts  of  Parliament,  proclamations,  &c, 
may  be  proved  by  copies  purporting  to  be  Queen's  printer's 
copies.     (Article  81.) 

4S..]  Penalty  for  forgery,  &c.  This  is  omitted  as  belong- 
ing to  the  Criminal  Law. 

Ss.  5,  6,  7.     Local  extent  and  commencement  of  Act. 
4. 

14  &  15  Vict.  c.  99 :  "  An  Act  to  amend  the  Law  of 
Evidence,"  7th  August,  1851  (20  sections) : — 

S.  1  repeals  part  of  6  &  7  Vict.  c.  85,  which  restricted 
the  operation  of  the  Act. 

S.  2  makes  parties  admissible  witnesses,  except  in  cer- 
tain cases.     (Effect  given  in  articles  106  &  108.) 

S.  3.  Persons  accused  of  crime,  and  their  husbands  and 
■wives,  not  to  be  competent.     (Article  108.) 

S.  4.  The  first  three  sections  not  to  apply  to  proceedings 
instituted  in  consequence  of  adultery.  Repealed  by  32  & 
33  Vict.  c.  68.  (Effect  of  repeal,  and  of  s.  3  of  the  last 
named  Act,  given  in  article  109.) 

S.  5.  None  of  the  sections  above  mentioned  to  affect  the 
Wills  Act  of  1838,  7  Will.  IV.  and  1  Vict.  c.  26.  (Omitted 
as  part  of  the  Law  of  Wills. ) 


Notes.]  the  law  of  evidence.  205 

iS.  6.  The  Common  Law  Courts  authorized  to  grant  in- 
spection of  documents.  (Omitted  as  part  of  the  Law  of 
Civii  Procedure.) 

S.  7.  Mode  of  proving  proclamations,  treaties,  &c 
(Article  84.) 

S.  8.  Proof  of  qualification  of  apothecaries.  (Omitted 
as  part  of  the  law  relating  to  medical  men.) 

Ss.  9,  10,  11.  Documents  admissible  either  in  England  or 
in  Ireland,  or  in  the  colonies,  without  proof  of  seal,  &c, 
admissible  in  all.     (Article  80.) 

S.  12.  Proof  of  registers  of  British  ships.  (Omitted  as 
part  of  the  law  relating  to  shipping.) 

S.  13.  Proof  of  previous  convictions.  (Omitted  as  be- 
longing to  Criminal  Procedure.) 

S.  14.  Certain  documents  provable  by  examined  copies, 
or  copies  purporting  to  be  duly  certified.  (Article  79,  last 
paragraph.) 

S.  15.  Certifying  false  documents  a  misdemeanor. 
(Omitted  as  belonging  to  Criminal  Law.) 

S.  16.  Who  may  administer  oaths.     (Article  125.) 

S.  17.  Penalties  for  forging  certain  documents.  (Omitted 
as  belong' ng  to  the  Criminal  Law.) 

S.  18.  ivct  not  to  extend  to  Scotland.     (Omitted.) 

S.  19.  Meaning  of  the  word  "  Colony."  (Article  80, 
note  1.) 

S.  20.  Commencement  of  Act. 
5. 

17  &  18  Vict.  c.  125.     The  Common  Law  Procedure  Act 


206  A   DIGEST   OF  [NOTES. 

of  1854  contained  several  sections  which  altered  the  Law 
of  Evidence. 

S.  22.  How  far  a  party  may  discredit  his  own  witness. 
(Articles  131,  133;  and  see  Note  XLVHI.) 

S.  23.  Proof  of  contradictory  statements  by  a  witness 
under  cross-examination.     (Article  131.) 

S.  24.  Cross-examination  as  to  previous  statements  in 
writing.     (Article  132.) 

S.  25.  Proof  of  a  previous  conviction  of  a  witness  may 
he  given.    (Article  130  (1).) 

S.  26.  Attesting  witnesses  need  not  be  called  unless 
writing  requires  attestation  by  law.     (Article  72.) 

S.  27.  Comparison  of  disputed  handwritings.  (Articles 
49  and  52.) 

After  several  Acts,  giving  relief  to  Quakers,  Moravians 
and  Separatists,  who  objected  to  take  an  oath,  a  general 
measure  was  passed  for  the  same  purpose  in  1861. 

6. 

24  &  25  Vict.  c.  66  (1st  August,  1861,  3  sections)  :— 

S.  1.  Persons  refusing  to  be  sworn  from  conscientious 
motives  may  make  a  declaration  in  a  given  form.  (Article 
123.) 

S.  2.  Falsehood  upon  such  a  declaration  punishable  as 
perjury.     (Do.) 

S.  3.  Commencement  of  Act. 

7. 
28  Vict.  c.  18  (9th  May,  1865,  10  sections):— 


Notes.]  the  law  ok  evidence.  207 

S.  1.  Sections  3-8  apply  to  all  courts  and  causes,  criminal 
as  well  as  civil. 
S.  3.  Ke-enacts  17  &  18  Vic.  c.  125,  s.  22. 


S.  4. 

M 

it 

M 

s.23. 

S.  5. 

(« 

U 

(« 

s.  24. 

S.  6. 

M 

u 

«( 

8.25. 

S.  7. 

H 

u 

U 

s.26. 

S.  8. 

U 

M 

H 

s.27. 

The  effect  of  these  sections  is  given  in  the  articles  above 
referred  to  by  not  confining  them  to  proceedings  under  the 
Common  Law  Procedure  Act,  1854. 

The  rest  of  the  Act  refers  to  other  subjects. 

8. 

31  &  32  Vict.  c.  37  (25th  June,  1868,  6  sections)  :— 
S.  1.  Short  title. 

S.  2.  Certain  documents  may  be  proved  in  particular 
ways.  (Art.  83,  and  for  schedule  referred  to,  see  note  to 
the  article.) 

S.  3.  The  act  to  be  in  force  in  the  colonies.     (Article  83.) 

S.  4.  Punishment  of  forgery.  (Omitted  as  forming  part 
of  the  Criminal  Law.) 

S.  5.  Interpretation  clauses  embodied  (where  necessary) 
in  Article  83. 

S.  6.  Act  to  be  cumulative  on  Common  Law.  (Implied 
article  73.) 

9. 

32  &  33  Vict.  e.  68  (9th  August,  1869,  6  sections) :— 


208  A   DIGEST   OF  [NOTES. 

S.  1  repeals  part  of  14  &  15  Vict.  c.  99,  s.  4,  and  part 
of  16  &  17  Vict.  c.  83,  s.  2.  (The  effect  of  this  repeal  is 
given  in  article  109 ;   and  see  Note  XLII.) 

S.  2.  Parties  competent  in  action  for  breach  of  promise 
of  marriage,  but  must  be  corroborated.  (See  articles  106 
and  121.) 

S.  3.  Husbands  and  wives  competent  in  proceedings  in 
consequence  of  adultery,  but  not  to  be  compelled  to 
answer  certain  questions.     (Article  109.) 

S.  4.  Atheists  rendered  competent  witnesses.  (Articles 
106  and  123.) 

S.  5.  Short  title. 

S.  6.  Act  does  not  extend  to  Scotland. 

10. 

33  &  34  Vict.  c.  49  (9th  August,  1870,  3  sections):— 

S.  1.  Recites  doubts  as  to  meaning  of  "Court"  and 
"Judge,"  in  s.  4  of  32  &  33  Vict.  c.  68,  and  defines  the 
meaning  of  those  words.  (The  effect  of  this  provision  is 
given  in  the  definitions  of  "  Court"  and  "  Jud^e"  in  ar- 
ticle 1,  and  in  s.  125.) 

S.  2.  Short  title. 

S.  3.  Act  does  not  extend  to  Scotland. 

These  are  the  only  Acts  which  deal  with  the  Law  of 
Evidence  as  I  have  defined  it.  It  will  be  observed  that 
they  relate  to  three  subjects  only— the  competency  of  wit- 
nesses, the  proof   of   certain   classes  of   documents,  and 


JNOTES.J  THE   LAW   OF   EVIDENCE.  209 

certain  details  in  the  practice  of  examining  witnesses. 
These  details  are  provided  for  twice  over,  namely,  once  in 
17  &  18  Vict.  c.  125,  ss.  22-27,  both  inclusive,  which  con- 
cern civil  proceedings  only ;  and  again  in  28  Vict,  c  18, 
ss.  3-8,  which  re-enact  these  provisions  in  relation  to  pro- 
ceedings of  every  kind. 

Thus,  when  the  Statute  Law  upon  the  subject  of  Evi- 
dence is  sifted  and  put  in  its  proper  place  as  part  of  the 
general  system,  it  appears  to  occupy  a  very  subordinate 
position  in  it.  The  ten  statutes  above  mentioned  are  the 
only  ones  which  really  form  part  of  the  Law  of  Evidence, 
and  their  effect  is  fully  given  in  twenty1  articles  of  the 
)igest,  some  of  which  contain  other  matter  besides. 


"  1   49,  52,  58,  72,  79,  80,  81,  88,  84,  106,  108,  109,  120,  181, 
123,  125,  181,  132,  188. 


INDEX 


Abortion,  38. 

Accomplices,  evidence  of,  139. 

"Action,"  an,  definition  of,  2. 

Acts  of  conspirators,  6  ;  illustrations  of,  7. 

showing  intention,  good  faith,  &c,  18  ;  illustration  of,  19. 
Acts  of  notifications,  relevancy  of  statement  in  certain,  52. 

of  Parliament,  93. 

of  State,  judgments,  &c;   foreign  and  colonial,  96. 
Admissions  defined,  26  ;  who  may  make,  and  when,  26  ;  illus* 
trations  of,  27. 

by  strangers  to  an  action,  80. 

by  person  referred  to  by  party,  81 ;  illustration  of,  ib. 

made  without  prejudice.  31. 

of  evidence,  improper,  152. 
Adultery,  competency  of  witnesses  in  proceedings  relating  to, 
130. 

letters  as  evidence  in  case  of,  100. 
Advocates'  privileges  as  to  certain  questions,  131. 
Affairs  of  State,  evidence  as  to,  132. 
Agent,  estoppel  of,  127. 
Art,  opinions  of  experts  on  points  of,  64. 
Attestation  of  documents  thirty  years  old,  101. 
Attesting  witness,  cases  in  which  he  need  not  be  called,  85. 

proof  of,  when  he  denies  the  execution,  85. 


212  INDEX. 

Bailee,  estoppel  of,  127. 

Bankruptcy,  11   35   99,  125. 

Barristers,  privileges  as  to  certain  questions,  181. 

Bastardy,  evidence  in  cases  of,  138. 

Bigamy,  58,  117. 

Bills  of  Exchange,  117. 

fictitious,  20. 

forged,  60. 

estoppel  of  acceptor  of,  126. 
Bills  of  Lading,  127. 
Birth,  evidence  of,  42. 
Burden  of  Proof,  115. 
Business,  declarations  made  in  the  course  of,  88. 

existence  of  course  of,  when  relevant,  28  ;  illustrations  of,  24. 

Cases  in  which  secondary  evidence  relating  to  documents  may 

be  given,  81. 
Cases  in  which  attesting  witness  need  not  be  called,  85. 
Certified  copies,  payment  for,  90 

of  evidence,  80. 
Character,  evidence  of,  in  criminal  cases,  70. 

when  relevant  and  when  not,  70. 

as  affecting  damages,  71. 
Charts,  relevancy  of  statements  in,  68. 
Cheques,  125. 

Clergymen  may  be  compelled  to  disclose  communications,  188. 
Collisions  between  ships,  61. 
Collusion  may  be  proved,  62. 
Colonial  Proclamations,  96 
Commission  of  offences,  information  as  to,  182. 
Common,  right  of,  48. 
Communications,  during  marriage,  181. 

professional.  138;  illustrations  of,  134. 

with  legal  advteers,  135. 

to  medical  men  and  clergymen  must  be  disclosed,  186. 
Comparison  of  handwritings,  68. 


ENDEX.  213 

Competency  of  witnesses,  129. 

of  jurors,  133. 
"Conclusive  proof,"  definition  of,  2;  illustrations  of,  8. 
Conduct,  estoppel  by,  124 
Confession,  when  deemed  voluntary.  32. 
Confessions  defined,  32. 

caused  by  inducement,  threat  or  promise,  when  irrelevant  in 
criminal  proceeding,  32  ;  illustrations  of,  32. 

made  upon  oath,  35  ;  illustrations  of,  id. 

made  under  a  promise  of  secrecy,  36. 

in  trial  for  felony,  76. 
Confidential  communications  with  legal  advisers,  135. 
Conspirators,  acts  of,  6  ;  illustrations  of,  7. 
Construction  of  documents,  108. 
Contract,  evidence  of  terms  of,  reduced  to  a  documentary, 

form,  104. 
Copies,  certified,  examined,   and  office,  80. 
Corroboration,  when  required,  138. 
Council,  Orders  in,  93. 
"  Court,"  definition  of,  1. 
Criminal  cases,  evidence  of  character  in,  70. 

competency  of  witnesses  in,  130. 
Crimination  of  witnesses,  137 
Cross-examination  of  witnesses,  143. 

to  what  matters  it  must  be  directed,  144. 

questions  lawful  in,  145. 

as  to  previous  statements  in  writing,  147. 
Customs,  9  ;   illustrations  of,  ib. 

Damages,  character  as  affecting,  71. 
Death,  dying  declaration  as  to  cause  of,  37 

presumption  of,  from  seven  years'  absence,  121. 
Debtors,  process  against,  30. 
Deceased  persons,  statements  by,  when  relevant,  36. 

what  matters  may  be  proved  in  reference  to  relevant  declar- 
ations by,  149. 


214  1KDJ3X. 

"  Declarant,"  86. 
Declaration,  86. 

dying,  119. 
Declarations  made  in  the  course  of  business  or  professional 
duty,  38  ;  illustrations  of,  39. 

against  interest,  40  ;  illustrations  of,  42. 

by  testators  as  to  contents  of  will,  44. 

as  to  public  and  general  rights,  44  ;  illustrations  of  45. 

as  to  pedigree,  46  ;  illustrations  of,  47. 
Deeds,  presumption  as  to  sealing  and  delivering,  100. 

of,  to  complete  title,  123. 
Depositions  before  magistrates,  49. 

under  30  &  31  Vict.  c.  85,  s.  6,  51. 
Disgavelling,  58. 
Divorce,  evidence  in,  57. 
"  Document,"  definition  of,  2  ;  illustrations  of  a,  8. 

proof  of  execution  of,  required  by  law  to  be  attested,  84. 

proof  of,  not  required  by  law  to  be  attested,  87. 

production  of,  88. 

examined  copies  of,  88. 

called  for  and  produced  on  notice,  given  as  evidence.  150. 

refused  on  notice  used  as  evidence,  151. 
Documentary  evidence, — primary  and  secondary,  and  attested 
documents,  79. 

modification  and  interpretation  of,  by  oral  evidence.  104. 

from,  evidence  of  terms  of  contract,  &c,  reduced  to,  104. 
Documents,  proof  of  contents  of,  79. 

by  primary  evidence,  80. 

cases  in  which  secondary  evidence  relating  to  may  be  given,  81. 

proof  of  public,  88. 

admissible  throughout  the  Queen's  dominions,  92. 

Queen's  printers'  copies  of,  93. 

colonial  and  foreign,  as  evidence,  96. 

presumption  as  to  date  of,  99. 

stamp  of,  100. 

thirty  years  old,  101. 


IXDBX.  215 

Documents — Continued. 

alterations,  101. 

alterations  of,  102,  103. 

proper  custody  of,  101, 

construction  of,  108. 

what  evidence  may  be  given  for  the  interpretation  of,  108. 

foreign  words  in,  109. 

technical  terms  in,  109. 

a  person  in  possession  could  refuse  to  produce,  137. 
Dying  declaration  as  to  cause  of  death,  37  ;  illustrations  of,  ib. 

declarations,  119. 

Effect  of  evidence,  115. 

judgment  not  pleaded  as  an  estoppel,  69  ;  illustrations  of,  ib. 
Embezzlement,  134. 
Entries  in  tradesman's  books.  53. 
Estoppel,  effect  of  judgment  not  pleaded  as  an,  59. 

by  conduct,  124. 

of  tenant  and  licensee,  126. 

of  acceptor  of  bill  of  exchange,  126. 

of  bailee,  127. 

of  agent,  127. 

of  licensee,  127. 
Estoppels  and  presumptions,  120. 
Evidence,  definition  of,  2. 

of  birth,  42. 

given  in  former  proceeding  when  relevant,  48. 

as  to  insanity  64,  66. 

of  character  in  criminal  cases,  70. 

oral,  77  ;  must  be  direct,  ib. 

documentary,  primary  and  secondary,  attested  documents,  79. 

examined  copies  of,  80. 

cffice  copies  of,  80. 

the  Gazette  as,  95. 

of  terms  of  contracts,  grants,  and  other  dispositions  of  pro- 
perty reduced  to  a  documentary  form,  104. 


216  INDEX. 

Evidence —  Continued. 

oral,  in  the  modification  and  interpretation  of  documentary 
evidence,  104. 

what  may  be  given  for  the  interpretation  of  documents,  108. 

production  and  effect  of,  115. 

burden  of  proving  fact  to  be  proved  to  make  it  admissible, 
119  ;  illustrations  of,  ib. 

as  to  affairs  of  State,  132. 

as  to  what  takes  place  in  Houses  of  Parliament,  182. 

of  accomplices,  139. 

in  cases  of  bastardy,  188. 

of  witnesses  to  be  upon  oath  except  in  certain  cases,  141. 

exclusion  of,  to  contradict  answers  to  questions  testing  vera- 
city, 145. 

giving  as,  document  called  for  and  produced  on  notice,  150. 

using  as,  a  document,  production  of  which  was  refused  on 
notice,  151. 
Evidence,  improper  admission  and  rejection  of,  152. 
Examination-in-chief  of  witnesses,  143. 

cross-,  of  witnesses,  143. 

re-,  of  witnesses,  148. 

to  what  matters  cross-  and  re-,  must  be  directed,  144. 
Examined  copies  of  evidence,  80. 
Exchange,  bills  of.     See  Bills  of  Exchange. 
Execution  of  document,  proof  of,  required  by  law  to  be  at- 
tested, 84. 
Exemplifications,  80,  S9. 

certified  copies  of,  90. 

made  by  an  officer  of  the  Court   90. 
Experts,  opinions  of,  on  points  of  science  and  art,  64. 

facts  bearing  upon  opinions  of,  66. 

"  Fact,"  definition  of,  1 ;  illustrations  of  a,  8. 
burden  of  proof  as  to  particular,  118. 
proving,  to  be  proved  to  make  evidence  admissible,  119. 


INDEX.  217 

Facts  in  issue  and  relevant  to  the  issue,  4 ;  may  be  proved,  ib. 
illustrations  of,  5. 

necessary  to  explain  or  introduce  relevant  facts,  12  ;  illustra- 
tions 0/",  13, 

similar  but  unconnected,  17  ;  illustrations  of,  ib. 

showing  system  22  ;  illustrations  of,  ib. 

bearing  upon  opinions  of  experts,  66  ;  illustrations  of,  67. 

which  need  not  be  proved — judicial  notice,  73. 

of  which  the  Court  takes  judicial  notice,  73  ;  proof  of  such,  76. 

admitted  need  not  be  proved,  76. 

proof  of,  by  oral  evidence,  77. 
Faith,  good,  acts  showing,  18. 
Felony,  61. 

confession  in,  71. 
Fishery,  right  of,  8. 

Foreign  and  Colonial  Acts  of  State,  judgments,  &c,  96, 
Foreign  words  in  documents,  109. 
Forged  Bills  of  Exchange,  60. 
Forgery,  104. 
Fraud,  collusion,  or  want  of  jurisdiction,  may  be  proved,  62. 

Game  Laws,  the  old,  119 

Gazette,  the,  as  evidence  95. 

General  records  of  the  realm,  S9. 

Government  prosecutions,  132. 

Grant,  presumption  of  lost,  122 ,  illustrations  of,  ib. 

Grants,  evidence  of,  reduced  to  a  documentary  form,  104. 

Grounds  of  opinion,  when  relevant,  69. 


Handwriting,  evidence  of  experts  as  to,  66,  67,  68. 
relevancy,  opinion  as  to,  67  ;  illustrations  to,  63. 
Handwritings,  comparison  of,  68. 

Hearsay  irrelevant  except  in  certain  cases,  25  ;  illustrations  to-, 
26. 


218  INDEX. 

He  who  affirms  must  prove,  115. 

High  treason,  139. 

Houses  of  Parliament,  evidence  as  to  what  takes  place  in,  182. 

Illegitimate  children,  120. 
Impeaching  credit  of  witness,  143. 
Imprisonment,  wrongful,  125. 

Improper  admission  and  rejection  of  evidence,  152. 
Incompetency  of  witnesses,  129. 

Inducement  as  a  cause  for  confession,  when  irrelevant  in  crim- 
inal proceedings,  82. 
Information  as  to  commission  of  offences,  182. 
Innocence,  presumption  of,  115. 
Insanity,  12. 

evidence  as  to,  64,  66. 
Insolvency,  21. 

Insurance,  22,  106,  116,  118,  119. 
Intention,  acts  showing,  18. 
Interest,  declarations  against,  40. 
Interpretation  of  documentary  evidence  by  oral  evidence,  104. 

of  documents,  what  evidence  may  be  given  for   the,  108 ; 
illustrations  of,  111. 
Involuntary  confessions    32. 
Irish  statutes,  proof  of,  93. 

"Judge,"  definition  of,  1. 

Judges  and  advocates  privileged  as  to  certain  questions,  131. 

"Judgment,"  definition  of,  54. 

"  Judgment,"  effect  of,  not  pleaded  as  an  estoppel,  59  ;  illustra- 
tion of,  ib. 

Judgments,  conclusive  proof  of  their  legal  effect,  54;   illustra- 
tions of,  55 
conclusive  as  between  parties  and  privies  of  facts  forming 

ground  of  judgment,  56  ;  illustrations  of,  ib. 
statements  in,  irrelevant  as  between  strangers,  except  in  Ad- 
miralty cases,  57. 


INDEX.  219 

Judgment —  Continued, 

generally  irrelevant  as  between  strangers,  60  ;  illustrations 
of  ib. 

conclusive  in  favour  of  judge,  61 ;  illustration  of,  62. 

foreign,  62. 

Acts  of  State,  &c,  foreign  and  colonial,  96. 
Jurisdiction,  want  of  may  be  proved,  62. 
Jurors,  competency  of,  133. 

Lading,  bills  of,  127. 

Legal  adviser,  confidential  communications  with,  135. 

Legitimacy,  presumption  of,  120. 

Libel,  13,  21. 

Licensee,  estoppel  of,  127. 

Lithographs  as  evidence,  80. 

Machinery.  125. 

Magistrates,  depositions  before,  49. 
Maps,  relevancy  of  statements  in,  53. 
Marriage,  validity  of,  44. 

opinion  as  to  existence  of,  when  relevant,  69. 

communications  during,  131. 
Medical  men  may  be  compelled  to  disclose  communications, 

136. 
Memory,  refreshing,  149. 
Mill  dams,  123. 
Modification  and  interpretation  of  documentary  evidence  by 

oral  evidence,  104. 
Motive,  preparation,  subsequent  conduct,  explanatory   state- 
ments, 9  ;  illustrations  of  10. 
Murder,   10. 

Notice  to  produce,  rules  as  to,  88. 

Notifications,  Acts  of,  relevancy  of  statement  in  certain,  52. 

Number  of  witnesses,  139. 


220  INDEX. 

Oath,  evidence  to  be  upon,  except  in  certain  cases,  141. 
Oaths,  form  of,  142. 

who  is  to  have  power  to  administer,  142. 
Obsolete  words  in  documents,  109. 
Occurrences  similar  to,  but  unconnected  with  the  facts  in  issue, 

irrelevant,  except  in  certain  cases,  17. 
Offences,  information  as  to  commission  of,  132. 

against  women,  148. 
Office  copies  of  evidence,  80. 
Opinion  generally  irrelevant,  64 ;  illustration  of,  ib. 

as  to  handwriting,  when  relevant,  67  ;  illustrations  of,  68. 

as  to  existence  of  marriage,  when  relevant,  69. 

grounds  of,  when  relevant,  69;  illustrations  of,  id. 
Opinions,  when  relevant  and  when  not,  64. 

of  experts  on  points  of  science  and  art,  64  ;  illustrations  of, 
65. 
Oral  evidence,  77;  must  be  direct,  ib. 

proof  of  facts  by,  77. 

in  the  modification  and  interpretation  of  documentary  evi- 
dence, 104. 
Orders  in  Counci ,  93. 

Parliament,  Acts  of,  93. 

Houses  of,  evidence  as  to  what  takes  place  in,  132. 
Partnerships,  125. 
Pedigree,  declarations  to,  47. 
Peerage  cases,  examined  copies  in,  89. 
Photography  as  evidence,  80. 
Plans,  relevancy  of  statements  in,  58. 
Poisoning,  14,  15,  22,  23. 

evidence  as  to,  65,  67. 
"  Presumption,  A,"  definition  of,  2. 

as  to  documents,  99. 

date  of  documents,  99. 

stamp  of  a  document,  100. 


ENDEX.  221 

Presumption —  Continued, 

sealing  and  delivery  of  deeds,  100. 

documents  thirty  years  old,  101. 

alterations  in  documents,  101. 

of  innocence,  115  ;  illustrations  of,  116. 

and  estoppels,  120. 
Presumption  of  legitimacy,  120. 

of  death  from  seven  years'  absence,  121. 

of  lost  grant,  122. 

of  regularity,  123. 

of  deeds  to  complete  title,  123. 
Primary  evidence,  79  ;  proof  of  documents  by,  80. 
Printing,  as  evidence,  80. 
Privileged  communications,  135. 

Privileges  of  judges  and  advocates  as  to  certain  questions,  181. 
Privy  Council  Orders,  95 
Proceedings  relating  to  adultery,  130. 
Proclamation  a  relevant  fact  in  recital,  52. 
Proclamations,  Foreign  and  Colonial,  96. 

Orders  in  Council,  &c,  93. 
Production  of  document  itself,  88. 

and  effect  of  evidence,  115. 

of  title-deeds  of  witness  not  a  party,  136. 

of   documents  which   another   person,   having    possession, 
could  refuse  to  produce,  137. 
Professional  communications,  133. 

duty,  declarations  made  in  the  course  of,  88. 
Proof,  78. 

of  facts  of  which  the  Court  takes  judicial  notice,  76. 

of  facts  by  oral  evidence,  77. 

of  contents  of  documents,  79. 

of  documents  by  primary  evidence,  80. 

of  execution  of  document  required  by  law  to  be  attested,  84. 

of  document  not  required  by  law  to  be  attested,  87. 

when  attesting  witness  denies  the  execution,  86. 

of  public  documents,  88. 


222  INDEX. 

Proof—  Continued. 

of  Irish  statutes,  98. 

must  be  given  by  those  who  affirm,  115. 

burden  of,  115. 

on  whom  the  general  burden  lies,  116  ;  illustrations  of,  117. 

burden  of,  as  to  particular  facts,  118. 
Property,  evidence  of  terms  of  contracts,  grants,  &c,  reduced 

to  a  documentary  form.  104. 
Prosecutions,  government,  182. 
Provincial  expressions  in  documents,  109. 
Public  ways,  8. 

record,  relevancy  of  entry  in,  made  in  performance  of  duty, 
52. 
Public  documents,  proof  of,  88. 

officers  and  documentary  evidence,  108. 


Queen's  dominions,  documents  admissible  throughout,  92. 
Questions,  advocates  privileges  as  to  certain,  131. 

leading,  to  witnesses,  144. 

lawful  in  cross-examination,  145. 

exclusion  of  evidence  to  contradict  answers  to,  testing  verac 
ity,  145 

Rape,  12,  148. 

Realm,  general  records  of  the,  89. 

Receiving  stolen  property,  19,  21. 

Recital  of  Proclamations  a  relevant  fact,  58. 

Record  Office,  documents  from,  89. 

Records  of  the  realm,  89. 

Re-examination,  148. 

to  what  matters  it  must  be  directed,  144. 
Refreshing  memory,  149. 

right  of  adverse  party  as  to  writing  used,  150; 
Regularity,  presumption  of,  128. 


Rejection  of  evidence,  improper,  152. 
Relevancy,  4. 

of  facts,  5. 

forming  part  of  the  same  transaction  as  facts  in  issue,  5 ; 
illustrations  of,  5 . 

general  definition  of,  14  ;  illustrations  of,  15. 

of  existence  of  course  of  business,  23. 

of  statements  by  deceased  persons,  36. 

of  evidence  given  in  former  proceedings,  48. 

of  entry  in  public  record  made  in  performance  of  duty,  52, 

of  statement  in  certain  acts  or  notifications   52. 

of  statements  in  maps,  charts,  and  plans,  53. 

of  opinion  as  to  handwriting,  67. 

of  grounds  of  opinion,  69. 

of  opinion  as  to  existence  of  marriage,  69. 

and  irrelevancy  of  character,  70. 
Repairs,  43. 
Right  of  common,  43. 
Right  of  way,  45. 

Rights,  public  and  general,  declarations  as  to,  44. 
Riots,  13. 

Royal  Proclamations,  93. 
Rules  as  to  notice  to  produce,  83. 

Sanity,  12. 

evidence  as  to,  64,  66. 
Science,  opinions  of  experts  on  points  of,  64. 
Seals,  official,  75. 
Secondary  evidence,  80. 

relating  to  documents,  cases  in  which  it  may  be  given,  81. 
Secrecy,  confession  made  under  promise  of,  86. 
Seduction,  22. 

Shipowner  and  underwriters,  58. 
Ships,  collisions  between,  61. 

loss  of,  118, 


224  LNDEX. 

State,  judgments  in  foreign  and  colonial  acts  of,  96. 

evidence  as  to  affairs  of,  132. 
Statement,  relevancy  of  in  certain  acts,  62. 

in  judgments  irrelevant  as  between  strangers,  except  in  Ad- 
miralty cases,  57  ;  illustrations  of,  58. 

inconsistent  with  present  testimony  may  be  proved,  146 

in  writing,  cross-examination  as  to  previous,  147. 

by  deceased  persons,  what  matters  may  be  proved  in  refer- 
ence to,  149. 
Statements  by  deceased  persons  when  relevant,  86. 
Statutes,  Irish,  proof  of,  93. 
Stolen  property,  receiving,  19,  21. 
Strangers,  statements  in  judgments  irrelevant  as  between,  54 

judgments  generally  irrelevant  as  between,  66  ;  illustrations 
of,  ib. 

Technical  terms  in  documents,  109. 
Tenant  and  licensee,  estoppel  of,  126. 
Terms,  definition  of,  1. 

of  contract,  evidence  of,  reduced  to  a  documentary  form,  104. 
Threat,  as  a  cause  for  confession,  when  irrelevant  in  criminal 

proceedings,  32 
Title,  8  ;  illustrations  of  ib. 

Title-deeds,  their  production  by  witness  not  a  party,  186. 
Tradesman's  books,  entries  in,  53. 
Treason,  139. 
Trespass  on  land,  61. 

Underwriters  and  shipowners,  58. 
Unwritten  laws,  73. 

Veracity   of  witnesses,   exclusion   of  evidence   to   contradict 

answers  to  questions  testing,  145. 
Voluntary  confessions,  82   76. 


INDEX.  22b 

Water,  right  to  use  of,  123. 
Way,  right  of,  45. 
Wells,  123. 
Will,  contents  of,  44. 

declarations  by  testators  as  to  contents  of,  44. 
Wills,  evidence  as  to,  111,  112. 
Witness,  attesting,  cases  in  which  he  need  not  be  caPed,  85. 

proof  of  document,  when  he  denies  the  execution,  86. 

not  a  party,  production  of  title  deeds  by,  136. 
Witnesses,  competency  of,  129. 

in  criminal  cases,  130. 

in  proceedings  relating  to  adultery,  130. 

who  are  incompetent,  129,  143. 

who  may  testify,  129. 

not  testify,  129. 

not  to  be  compelled  to  criminate  themselves,  137. 

number  of,  139. 

examination  of,  141. 

evidence  of,  to  be  upon  oath,  except  in  certain  cases.  141. 

forms  of  oath,  142. 

who  is  to  have  power  to  administer  oath,  142. 

examination  in  chief,  143. 

cross-examination,  143. 
Witnesses,  re-examination,  143. 

to  what  matters  cross-examination  and  re-examination  must 
be  directed,  144. 

incompetent,  144. 

leading  questions,  144. 

questions  lawful  in  cross-examination,  145. 

exclusion  of  evidence  to  contradict  answers  to  questions  test- 
ing veracity,  145. 

statements  inconsistent  with  present  testimony  maybe  proved, 
146. 

cross-examination  as  to  previous  statements  in  writing,  147, 

impeaching  credit  of,  148. 


226  INDEX. 

Witnesses —  Continued. 
refreshing  memory,  149. 
wright  of  adverse  party  as  to  riting  used  to  refresh  memory, 

150. 
giving  of  evidence,  document   called  for  and   produced  on 
notice,  150. 
Women,  offences  against,  148. 

Writing  used  to  refresh  memory,  right  of  adverse  party  as  to, 
150. 


UC  SOUTHERN  REGIONAL 


B     000  018  923     3 


